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23  WBT  MAIN  STRUT 

WIMTILNX  14510 

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CIHM/ICMH 

Microfiche 

Series. 


CIHIVI/ICMH 
Collection  de 
microfiches. 


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Technical  and  Bibliographic  Notas/Notes  techniques  et  bibliographiques 


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D 


D 


D 


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Coloured  covers/ 
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I      I    Covers  damaged/ 


Couverture  endommagte 

Covers  restored  and/or  laminated/ 
Couverture  restaur6e  et/ou  pellicul6e 


n    Cover  title  missing/ 
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Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 


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The 
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I      I   Coloured  pages/ 


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Pages  de  couleur 

Pages  damaged/ 
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obtenir  la  meilleure  image  possible. 


The 
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beg 
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sior 
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The 
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This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  filmi  au  taux  de  reduction  indiquA  ci-dessous. 

10X  14X  18X  22X 


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y 


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aox 


24X 


28X 


32X 


Th«  copy  filmed  hara  has  been  reproduced  thanks 
to  the  generosity  of: 

Library  of  the  Public 
Archives  of  Canada 


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pubiiques  du  Canada 


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dernlAre  page  qui  comporte  une  empreinte 
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la  dernlAre  page  qui  comporte  une  telle 
empreinte. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  — ^  (meaning  "CON- 
TINUED"), or  the  symbol  V  (meaning  "END"), 
whichever  applies. 


Un  des  symboles  suivants  apparaltra  sur  la 
derniire  image  de  cheque  microfiche,  selon  le 
cas:  le  symbols  -^  signifie  "A  SUIVRE",  le 
symbols  V  signifie  "FIN". 


IMaps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  lerge  to  be 
entirely  Included  In  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Les  cartes,  planches,  tableaux,  etc.,  peuvent  itre 
filmte  A  des  taux  de  reduction  diff Arents. 
Lorsque  le  document  est  trop  grand  pour  6tre 
reproduit  en  un  seul  clich6, 11  est  film*  A  partir 
de  I'angle  supArieur  geuche,  de  gauche  A  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  nicessaire.  Les  diagrammes  suivants 
illustrent  la  mAthode. 


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XJNITED  STATES  OF  AMERICA* 


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BY  Aif  I  "^PARTIAL  ClTlZm* 


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*  lomni  utuhtfcn  putmta 


BOSTON: 
riinTBD  BY   DjiriD   CJtUtitMt 

For  JOSEPH  NANCREDE,  No.  49,  Mm^i^omvou  STRtftr* 

I80I. 


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ADVERTISEMENT  BY  THE  AUTHOR!. 


The  freedom  oftheprefs  is  of  vaji  tmpor-' 
iance  to  the  United  States  ;  it  depends,  for  its  conJiitutioH' 
til  definition,  upon  natural,  Jimple  principles  ;  there  is  no  ah" 
/irufe  learning  onthefuhje£l.  It  ought  to  be  fettled y  and  un- 
derjiood  by  the  body  of  freemen,  ivhofe  votes  in  elc^iions,  and 
ivhofe  verdids  ds  jurymen,  dre  to  mairitdin  it,  according 
to  its  con flitutional  principles. "" 

This  rffay  is  thefirjl  attempt  of  the  kind  in  Amenca, 
Whoever  reads  the  production,  will  find,  that  it  is  not  %ir  it- 
ten  under  the  influence  of  any  party.  Some  of  each  party  will 
be  difp  leafed  with  it.  But  as  it  is  compofed  with  a  fine  ere 
defirc  to  enlighten,  and  inform  the  whole  bbdy  of  the  people  y 
in  a  matter  of  great  confequencc  to  their  liberty  andfafety, 
the  author  is  by  no  means  anxious  in  regard  to  the  opinions 
of  men,  who  have  forfaken  principle,  and  devoted  themfehes' 
to  party.  He  will,  indeed,  cohftder  himfetfas  unfortunate 
in  this  produdion,  unlefs  itfhall  be  abnfed,  mutilated,  mif- 
underflood,  and  mifapplied,  as  is  ufualinfuch  cafes.  Shoidd 
he  be  charged  with  being  ambitious  to  be  Prefident,  Govern- 
or^-  fudge.  Senator,  or  any  thing  elfi,  he  allows  the  charge  ; 
— '•only  read  ^the  book,  and' attend  to  the  truths  jt  contains^ 
and  his  wijhes  are  accomplifhed* 


*»(p'»*'r''?*«R?*8«'*i"reusSi^  ■•»! 


."»«,'  \x  •)   «. 


**^ti  ■>■ ,  t.- 


.'MsSTOST'Sssjri^ 


'.    ii '■■:■{  h.   J>  :  ";...ui 


;^..i>. '>:   i'"'av'gi-    ' 


->  .«. 


:\      ;.'•-'        •        ^  '  *  !    t  • 


•     •    •  • 


•  * 

9       • 


—  ..  I 


A  PREFACE  BT  THE  AUTHOR. 


««V,.>: 


Wi 


HERE  (hall  the  true  art  of  exerclfing  pow- 
;Cr  without  tyranny,  or  authority  without  pufiUanimity 
be  found  ?  The  idea  of  power  is  noble,  and  fublime  j 
we  tremble  at  it,  when  we  conceive  it  to  be  uncon- 
trolable  and  irrefiftible.  We  Hand  in  awful  dif- 
fidence before  it ;  becaufe  our  firft  conceptions  of 
its  form  admit  of  no  modifications  or  reftraint.  But 
the  moment  it  has  become  familiar  to  our  fenfes,  and 
we  have  conceived  the  idea  of  rendering  it  fubfervient 
to  our  will,  the  apprehenfion  of  terror  vanifhes,  and 
we  foon  treat  it  with  indifference  and  contempt. 
Strength  is  the  firft  indication  of  power,  but  when  the 
horfe  is  broken  to  the  bit,  or  the  ox  fubdued  to  the 
yoke,  the  fublime  an''  terrible,  which  had  before  af- 
fociated  themfelves  with  the  dread  of  ftrength,  are  done 
away.  The  tyger  and  the  wolf  excite  emotions  of 
terror,  but  the  maftiff  and  the  fpaniel  recline  on  our 
bofoms. 

The  ancient  nations  were  well  acquainted  with  all 
the  feelings  of  the  human  heart.  Homer  carried  his 
hero,  under  the  contefted  proteftion  of  a  multitude  of 
gods,  through  dangers  and  diftreffes,  through  voy- 
ages and  fhipwrecks,  through  victories  and  defeats,  to 
lay  the  foundation  of  the  Grecian  empire.  The 
Greeks  brought  their  civil  inftitutions  from  Egypt, 
where,  as  it  was  then  believed,  the  gods  had  promul- 
gated laws  for  mankind.  This  was  done,  that  the  laws 


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fhould  be  refpe«n:ed  by  the  people.  The  Romans 
founded  an  empire,  by  the  man  who  had  been  nurfed 
by  a  wolf ;  and  their  poet,  in  inutation  of  Homer,  to 
render  their  origin  refpedable,  and  their  religious 
and  civil  inflitutions  facred,  detailed  the  perils,  the 
wars,  and  the  interpofitipn  of  the  gods,  which  carried 
the  firfl:  of  their  race  to  the  fpot,  which  was  admu'e4 
by  earth,  and  protefled  by  heaven. 

Before  the  chriftian  religion  was  refpefked  in  Eu? 
rope,  fabulous  deities  were  called  in,  to  take  a  part  in 
the  inauguration  of  kings  ;  and  the  laws  were  fram* 
cd  by  the  Druids,  who  lived  fequeftered  from  the 
world,  and  were  conftdered  as  having  an  intercourfe 
with  heaven.  As  foon  as  chriflianity  was  eilabliihed, 
the  divine  right  of  kings  was  proclaimed,  as  fron\ 
beaven  ;  and  miraculous  figns,  and  terrible  wonders, 
were  obferved  at  the  birth  of  princes,  and  the  coro* 
pation  of  monarchs. 

The  EngUfh  nation  have  had  fo  many  changes  in 
the  dynafty  of  their  throne,  that  they  are  compelled, 
by  a  fenfe  of  decency,  to  abandon  the  divine  right  of 
earthly  fovereigns,  and  the  peculiar  efficacy  of  the  roy- 
al blood,  A  facred  regard  to  a  conftitution,  muci? 
talked  of,  no  where  on  paper,  and  highly  refpe£ted, 
becaufe  it  has  never  been  feen,  forms  the  main  bon4 
of  that  vigorous  and  efficient  government. 

But  where  (hall  we,  placed  in  the  going  down  of 
the  fun  ;  we,  who  have  been  familiar  with  our  own 
origin,  and  have  created  ourfelves  j  we,  who  are  but 
of  yefterday,  find  a  fubftitute  equal  to  the  exigency  of 
our  fituation  ?  Compcfed  of  millions,  who  widely  dif- 
fer in  their  educations,  habits,  mj^nners,  purfuits  au4 


C    5    1 


dedgns,  what  fliall  hold  us  together  as  a  nation  ?  Our 
conftitution  of  national  government  is  in  our  owa 
bands,  like  the  fchool  books ;  we  know  t!ie  men  who 
formed  it.  They  have  not,  like  Sulon,  banifhed  thenar 
fclves  firom  the;  country,  nor  like  the  Druids,  fequef- 
tered  tbemfelves  from  the  world.  They  remaiii  among 
US,  as  men  of  like  paffions,  fubjeded  to  the  fame  (er- 
rors, follies  and  weaknefs,  as  other  men.  So  far  arc 
they  frQm  boafting  of  an  infpiratian  in  this  work,  that 
neither  two  of  them  can  agree  to  uuderiland  th^  in{lra« 
jnent  in  the  fame  fenfe.  ^  — 

We  not  only  have  this  thing  in  our  own  hands, 
familiar  to  our  fienfes,  but  it  iiiforms  us,  that  it  is  in 
our  own  power,  fubject  to  any  alterations  we  may 
chpofe  to  make  in  it.  How  then  ihall  we  drefs  it  in 
the  fublime  and  noble  ?  How  ihall  we  decorate  it  in 
the  venerable  habiliments  of  a  myfterious  and  fuper- 
natural  origin  ?  How  ihall  we  raife  and  maintain  a 
permanent  awe  and  reverence  for  it  ?  Shall  we  change 
it  for  a  more  inconteiiible  power,  by  adopting  an 
hereditary  e^fecutive,  in  the  room  of  an  eledive  chief 
magiihatc  ?  Behold  the  divine  right  of  kings  is  done 
away  !  their  perfons  are  no  longer  facrcd  !  but  the 
throne  is  the  rallying  point  of  facHon,  and  the  fup- 
porter  of  the  ftandard  of  civil  war.  Round  this  the 
partizans  colled  their  forces,  under  various  pretexts, 
but  to  gain  the  fame  objeft,  the  proftratlon  of  power, 
and  the  plunder  of  the  people. 

Shall  we  reflore  the  days  of  ignorance,  and  fanati- 
ciftn,  and  return  to  the  dark  ages,  when  rulers  fliall 
be  coiifidered  as  gods,  though  we  fee  them  die  as 
wen  ?  Alas !  the  days  of  religious  cnthufiafm,  found- 


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ed  in  the  ignorance  of  mankind,  are  the  days  of  ty- 
ranny and  calamity. 

Shall  we  rely  on  our  boafted  diflemination  of  knowl- 
edge and  learning,  and  fly  to  our  churches,  colleges, 
academies  and  fchools,  as  the  ancients  did,  in  their 
diftrefs,  to  the  temples  of  their  gods  ?  Here  we  find 
that  learning  is  but  the  fpy  of  forrow,  and  that  a 
great  part  of  it  is  expended  in  defcribing  troubles 
which  can  never  happen,  or  in  attempts  to  overturn 
the  civil  flate,  that  contending  parties  may  gain  a  lu- 
crative and  powerful  (landing.  <4{v: 

Since  then  the  real  happinefs  of  our  country  has 
no  kind  of  connexion  with  thofe  boifterous  flruggles  5 
fmce  every  violent  contention  ferves  to  diflrafb  the 
people,  and  weaken  the  ibcial  compad,  fince  the  de- 
ftruftion  of  our  conftitution  will  annihilate  our  exifl:- 
ence  as  a  nation,  and  render  us  wretched  as  citizens, 
and  miferable  as  men,  we  will  attach  ourfelves  to 
that  glorious  fyftem  ;  we  will  hold  in  contempt  the 
few,  who  fill  the  atmofphere  with  feditious  libels, 
bafe  calumnies,  and  falfe  reafonings,  and,  rallying 
round  the  conftitution,  we  will,  in  the  charafter  of 
brethren,  live  and  die  like  freemen,  honorably  aflb- 
ciatcd  for  civil  happinefs,  and  the  promotion  of  our 
country's  honour  and  intereft. 


1 


DISSERTATION. 


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WHEN  the  conftitution  of  the  United  States  was 
formed,  there  was  no  provifion  in  regard  to  the 
freedom  of  the  prefs  ;  the  general  convention  left  it  to 
the  common  underflanding,  and  eflabliihed  opinion  of 
the  people.  But  the  conventions,  which  were  called  in 
the  feveral  ftates,  to  ratify  the  inftrument,  exhibited 
propofals  for  an  explicit  recognition  of  the  privilege,  as 
it  had  been  ufed  and  approved  in  the  country.  Upon 
this,  the  firft  Congrefs,  by  way  of  amendment  to  the 
Conftitution,  refolved,  that  "  Congrefs  fhall  make  no 
law  refpefting  an  eftabKlhment  of  religion,  or  prohib- 
iting the  free  exercife  thereof,  or  abridging  the  free- 
dom of  fpcech,  or  of  the  prc/s,  or  of  the  r^ht  of  the 
people,  peaceably  to  anemble,  and  to  petition  the 
government  for  a  redrefs  of  grievances." 
Previoufly  to  this,  tliTere  had  been  exprefe  provifion 
made,  in  feveral  of  the  ftates,  to  prevent  an  ■abridgment 
of  the  liberty  of  the  prefs;. .  In  New  Hampfliire,  it  was 
declared,  that  "  the  liberty  of  the  prefs  is  elfential  to  the 
"  fecurity  of  the  freedorii  of  a  ftate  :  it  ought  therefore 
**  to  be  inviolably  preferved." 

In  Maffachufetts  it  is  thus  eiprefled  in  the  declaration 
of  rights  prefixed  to  the  conftitution  ;  "  ITie  liberty  of 
"  the  prefs  is  eflentral  to  the  fecurity  of  freedom  in  a 
"  ftate  :  it  ought  not,  therefore,  to  be  reftrained  in  this 
**  commonwealth." 

As  new  conftitutions  were  not  formed  in  the  ftates  of 
Rhode  Ifland,  and  Connefticut,  there  was  not,  in  either 
of  thofe  ftates,  any  declaration  upon  the  fubjeft.  The 
freedom  gf  the  prefs  was  well  underftood  in  thofe  ftates  > 


fr' 


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and  tlie  comnioTi,  publir  opinion  of  (he  citizens  In  ihcni< 
was  cllablidieil  in  unil'uu  with  the  declarations  made  by 
the  others. 

The  convention  which  formed  the  conftitution  of  the 
flate  of  New  York,  an4  the  people  whofe  authority  rati- 
fied it,  contented  themfelves  with  declaring,  ordaining, 
and  determining,  "  that  fuch  parts  of  the  common  law 

of  England,  with  the  ftatutes  adopted,  and  the  afts  of 

their  own  legiflature,  as  together  did  form  the  law  of 
*'  tlie  colony  in  the  year  1775  fliall  continue,  fubjeft  to 
**  the  alterations  of  tne  legiflature."  "^^^Y  ^^^^  '^^^^ 
fidercd  the  freedom  of  the  prefs  as  eflablifned  by  tha 
common  law  ;  and  were  under  no  ^prehenfions,  that  a 
legiflature,  frequently  eled:ed  by  the  people,  would  ever 
be  induced  to  lay  an  undue  redraint  upon  a  privilege  fb 
important)  as  that  of  a  free  communication  of  fentiment 
on  public  meafures.  ...,,/   .  •'  ;  f.,..f  ni 

The  ftate  of  Pennfylvania,  is  more  explicit  in  its  con>. 
ftitution  on  this  fubjeft.    The  provifion  there  is,  "  that 

the  printing  prefles  fliall  be  free  to  every  one  who  un^ 

dertakes  to  examine  the  proceedings  of  the  legiflature, 
*'  or  any  branch  of  government  i  and  no  law  mall  ever 
"  be  made  to  reftrain  the  right  thereof.  The  free  com- 
"  munication  of  thoughts  and  opinions,  is  one  of  the  in« 
*'  valuable  rights  of  main  ;  and  every  citizen  may  free« 
*'  ly  write  a^,d  print,  on  any  fuWea,  being  refponfible 
*'  fox  the  abufe  of  that  liberty.  In  the  profecutions  for, 
**  publications  of  papersj  inveiligating  the  official  con* 
"  du£t  of  officers,  or  men  of  public  capacity,  or  where 
"  the  matter  publiflied  is  proper  for  public  mforma/tiony 
"  the  truth  thereof  may  be  given  in  evidence.  And,. in 
"  all  indiftnMints  for  ltt)els,  the  jury  fliall  have  a  right  to 
*'  determine  the  law  and  the  fads,  under  the  diredioii. 
"  of  the  court,  as  in  other  cafes." 

The  ftate  of  Maryland  faid  no  more  than  "  that  the 
"  liberty  of  the  prefs  ought  to  be  inviolably  preferved." 

The  ftate  of  Virginia  I'eems  to  reft  the  guardianfliip  of 
this  important  privilege  on  the  common  underftanding, 
and  the  enlightened  prudence  of  the  people.       ,  <     ■ 

III  Noriii  Caroliiia  it  was  declared,  "  that  the  free- 


t    9     ] 


con* 


;  free- 


**  dom  of  the  prefa,  is  one  of  the  great  bulwarks  of  m^i 
"  crty,  and  therefore  ought  never  to  be  reftraincd." 

South  Carolina  committed  the  privilege  to  the 
keeping  of  the  common  law,  as  underftood  by  the  peo- 
ple. 

In  Georgia  it  was  declared,  that  "  freedom  of  the 
**  prefs,  and  trial  by  jury,  fhould  remain  inviolate." 

In  Vermont  it  was  declared,  "  that  the  people  have 
"  a  riglit  of  freedom  of  fpeech,  and  of  writing  and  pub- 
"  lifliing  their  fentiments,  concerning  the  tranfaftions  of 
"  government  j  and  therefore  the  freedom  of  the  prefs 
"  ought  not  to  be  reftrained." 

In  the  States  of  Tenneflee  and  Kentucky^  the  declara- 
tions on  the  freedom  of  the  prefs  are  the  fame.  "  1  hat 
**  the  printing  prefles  (hall  be  free  to  every  peribii 
**  who  undertakes  to  examine  the  proceedings  of  the 
**  legiflature,  or  any  branch  or  officer  of  governmrnt  : 
**  and  no  law  (hall  ever  be  made  to  redrain  the  right 
"  thereof.  The  free  communication  of  thoughts  and 
**  opinions,  is  one  of  tHe  invaluabh  rights  of  man  ;  and 
"  every  citizen  may  freely  fpeak,  write,  and  print  on 
"  tmy  fubjedlj  being  refponfible  for  the  abufe  of  that 
*'  liberty.  But  in  profecutions  for  the  publication  of 
•*  papers  invelligating  the  official  conduft  of  officers,  or* 
"  men  in  public  capacity,  the  truth  thereof  may  be  giv- 
"  en  in  evidence  ;  and  in  all  indidments  for  libels,  the 
"  jury  (hall  have  a  right  to  determine  the  law,  and  the 
'^  tacls,  under  the  diredion  of  the  court,  uj  in  other 
"  cafes." 

This  fubjed  is  treated  as  a  matter  of  great  importance 
by  the  Congrefs  of  the  general  gofvemmcnt,  as  well  as 
by  the  conventions  of  the  greater  part,  and  by  all  the 
people  of  the  United  States.  Their  wifhes  fcem  to  be 
concentrated  in  a  principle,  which  ihcy  conceive  to  be 
highly  interefUng  to  the  whole  nation,  and  of  great  ac- 
count in  the  eftabliflmieiit,  and  prt-ltTvation  of  free  gov. 
ernments.  The  fyilems  they  wcyl  farming,  were  to  be 
rcflcd,  for  fupport,  on  the  ojMiiions  of  the  people  at  large  ^ 
and  it  would  therefore  have  btca  a  great  degree  of  re- 
ciifncfs  in  their  procedure,  to  Invve  left  ;iny  ilung  in  the 

11 


!i^ 


i% 


t 


if 


i  ,■ 


;,>.  ■ 


[     lo     ] 

t!pay  of  a  free,  open,  arid  univerfal  communication  oflen-' 
timents  upon  public  men,  and  public  meafures,  where 
the  ihme  fhould  be  neceffary  to  maintain  the  principles 
of  the  conftitutions  they  were  forming. 

The  conventions  of  the  flates,  and  the  Congrefs  of  the 
United  States,  ufe  the  word  prefs  as  defcriptive  of  the 
free  communication  of  ideas  and  fentiments,  by  the  art  of 
printing.  This  kind  of  figure,  in  fpeech,  where  the  con- 
tinent is  ufed  for  the  contents  ;  the  appellation  of  the 
caufe  as  a  defcription  of  the  effeft  y  or  the  power  which 
produces,  for  the  produdl:  obtained,  is  very  common  in 
all  languages.  By  the  freedom  of  the  prefs  they  un- 
doubtedly intended  an  unfcjlrained  vfe^  and  free  impro*ue' 
ment  cf  the  prh'ilegc  of '■jjrit'mg,  and  pr'nrting^  in  the  com- 
jnuniration  of  fenihnents  and  opinions^  on  matters  of  public 
concernment,  governmental  meafures^  and  political  proce- 
dures.  Not  a  licentious  r.nd  deftrudive  abufe  of  the 
privilege,  in  fuch  a  manner,  as  that  wicked  and  malicious 
men  fhould  gratify  their  refentment,  malevolence,  and 
revenge,  to  the  overthrow  of  family  reputation,  and  the 
ruin  of  their  neighbor's  chara^er. 

In  order  to  def-ne  the  meaning  of  the  liberty  of  the 
prefs,  as  eflablifhed  in  the  country,  I  fhall, 

Firfl,  Endeavor  to  fhew  how  far  it  may  be  confidered" 
as  free,  in  regard  to  the  rights  of  individual  members  of' 
the  community,  in  their  private  capacities. 

Secondly,  How  far  it  may  be  reftrained,  confiflently 
with  the  principles  of  the  conftitutions  of  our  govern- 
ments, in  regard  to  men,  m  their  public  official  charac- 
ter and  condudt. 

Thirdly,  How  far  it  may  be  reftrained  in  regard  to 
the  meafures  of  government,  and  in  queflions  of  elec- 
tions. 

Fourthly,  Shall  make  fome  obfervations,  on  a  late  a6t 
of  Congrefs,  which  has  farnifhed  fo  much  fuel  for  the 
fire  of  party  zeal. 

It  feems  to  be  an  agreed  principle,  that  government 
is  inftituted  for  the  public  good  ;  and  to  preferve,  in 
fafuty,  the  lives,  the  happinef's,  the  interefts,  the  charac- 
ters, and  the  eftates  of  all  tlwfe,  who  are  combined  to- 


^i; 


C   M   3 

;maintaln  it ;  and  who  have  confented  to  become  the 
fubjeds  of  it.  In  the  focial  compacls,  which  we  de- 
nominate conflitutions,  no  more  is  furreudered  or  given 
up,  than  what  is  fuppofed  to  be  necefliiry  to  the  fafety, 
and  well  being  of  the  whole.  So  much  is  coniequently 
retained,  as  camiot,  in  the  nature  of  the  government,  be 
defended  and  protefted  by  the  powers  of  the  aflbciation. 
The  right  of  confcience,  as.  to  the  forms  arid  principles 
•of  devotion,  cannot  be  ceded,  and  given  up,  becaufe  this 
is  a  matter  between  a  man  and  God,  the  high  and  holy 
creator  and  preferver  of  all  things,  and  man  can  have 
no  control  over  it.  Reputation,  and  charader,  are  of 
great  confequence  to  the  happinefe  and  enjoyment  of 
.human  hfe,  and  therefore,  thefe  are  never  Sacrificed  to 
government,  but  are  jewels  of  ineftimable  value,  depofit- 
€d  carefully,  to  the  fafe  keeping  of  the  conftitution,  and 
the  proteftion  of  the  laws.  The  whole  fociety  has  an 
intereft  in  the  reputation  of  each  individual  member,  as 
in  a  part  of  the  wealth  and  happinefs  of  the  community, 
There  is  an  invaluable  right,  which  the  fociety  has  in 
the  good  charader  of  each  individual  of  which  it  is  com- 
pofed.  In  order  to  demondrate  this,  nothing  more  is 
neceflary,than  to  conceive  of  the  diflrefs  and  mifery  of  a 
community,  compofed  of  men,  who  have  no  moral  prin- 
ciple, and  who  are  totally  regardlefs  of  character,  integ- 
rity, and  truth.  It  has  been  laid,  and  perhaps  was  never 
difputed,'  that  the  founders  of  Rome  were  a  banditti, 
a  collection  of  robbers  ;  but  this  camiot  be  underftood, 
-as  meaning  any  thing  more,  than  that  they  were  regard- 
lefs of  the  natural  rights  of  other  tribes,  and  did  not  at- 
tend to  the  law  of  nations,  which  in  later  times  has 
governed,  in  fome  meafure,  the  conduct  oi  independeni 
nations  towards  each  othei-.  The  hordes,  duns,  or 
tribes  of  all  that  part  of  the  world  were  then  hoftiie  to 
each  other  ;  and  the  Romans,  no  doubt,  made  an  ac- 
.ceflion  of  ftrcngth  by  receiving  fugitives  from  jullice  into 
their  fociety  ;  there  muft  have  been,  neverthelefs,  a 
great  degree  of  public  and  private  virtue,  to  lay  the 
foundation,  and  to  raife  fo  powerful  an  afTociation,  as  that 
.of  the  Roman  empire.      Tiie   Romans  not  only  bo^iuj 


I. 


1*  i 


1 


>  ly 


•I  J 


1/   !■ 


[      12      ]         • 

yery  early,  to  inculcate  the  principles  of  morality  a^d 
virtue,  but  they  made  a  g(V5d  charafter  the  qualification 
to  office,  and  the  preliminary  condition  of  public  con* 
fidence. 

The  laws  of  all  civilized  nations  provide  for  the  pro- 
tef'ion  of  charafter,  by  the  punifhment  of  (lander,  as  a 
crime  agairjft  the  public,  and  by  giving  a  remedy  in 
damages  at  the  fiiit  of  the  party  injured,  In  our  laws, 
the  words  which  are  confldcred  as  flander,  are  very  well 
defined,  and  are  clafled,  as  thofe  which  have  a  tendency 
to  expofe  the  perfon  of  whom  they  are  uttered  to  a  prof- 
ecution  for  an  offence  a;jainft  the  public,  and  thofe 
which  injure  him,  or  have  a  tendency  to  injure  him  in 
his  profpeOs,  buHnefs,  or  profeflion.  A  diftindlion  is 
alfo  made  between  thofe  words  above  defcribed,  and 
Vv'ords  which  prpceed  from  fudden  heat  and  paffion  ; 
fuch  as  calling  one  a  rafcal,  liar,  villain,  &c.  Thefe  are 
highly  provoking,  and  frequently  produce  very  fatal 
confequences  between  the  parties,  and  which  might,  per- 
haps, be  avoided  by  the  proyifion  of  a  legal  remedy. 

The  diftinftion  between  words  proceeding  from  mal- 
ice, and  thofe  which  are  only  from  fudden  heat  and 
paflion,  is  loft,  when  they  are  committed  to  paper  ;  be- 
caufe  that  every  aft  of  writing  is  deliberate,  and  the 
party  has  time  to  refleft,  and  is  therefore  deprived  of  the 
excufe  of  a  fudden  gufl  of  paffion  or  refentment.  This 
diftinftion  is  founded  in  the  nature  of  man,  and  is  there- 
fore a  conftituent  part  of  the  laws  of  every  fociety. 

But  there  is  yet  fomething  more  in  the  nature  of  this 
diftinftion.  Words  vanifli  in  ajr,  unlefs  the  injury  real- 
ly done  by  fpeaking  them  has,  from  peculiar  circumftanc- 
es,  an  abiding  effcft  on  the  character  againft  whom  they 
are  fpoken  ;  but  words  written,  or  figns  made  to  imprel's 
the  fenfes,  may  do  Ji  lafting  injury.  Hence  it  has  been 
always  holden,  that  ercfting  a  gallows  at  a  man's  door, 
is  punifliable,  and  fo  is  the  making  of  any  other  fign,  or 
pifture,  as  expreffivc  of  his  dcferving  an  infamous  pun- 
ifhment, or  the  drawing  figns,  or  pidures,  expreffive 
of  his  having  committed  crimes,  or  of  his  being  a  fcan- 
^hlous,  abandoned,  or  wicked  man.    Thcfe  have  not 


t    '3    ] 


per- 


only  a  tendency  ♦  ijure  him  perfonally,  but  they  hav6 
glfo  a  ftrong  tenc  .  'y  to  injure  his  family,  and  connex- 
ions, who  may  have  good  charaders,  even  if  his  is  not 
good. 

This  kind  of  abiifc  has  no  tendency  to  corred  the 
morals  of  the  man  againft  whom  it  is  uttered,  but  may 
(limulate  him  to  revenue  ;  and  thereby  endanger  the 
peace  of  the  fociety.  If  the  man  is  proveably  guilty  of 
crimes,  let  him  be  expofed  t<i*punifliment,  according  to 
the  laws  ;  if  there  is  no  proof,  he  ought  not  to  have  a 
flanderous  accufation  exhibited  without  proof,  in  a  man- 
ner which  will  not  admit  of  a  defence  ;  and  which  might, 
by  creating  a  prejudice  againft  him,  deprive  him  of  a  de- 
fence on  a  future  trial.  If  the  charge  by  way  of  libel  is 
only  for  foibles,  or  wcaknefs  of  character,  it  is  a  crime 
againft  the  community  to  publifli  it  ;  becaufe  no  one  is 
without  his  failings,  and  if  you  have  a  right  to  expofe 
thofe  of  one  man,  you  have  a  right  to  expofe  thofe  of 
all,  and  that  refpeft  yielded  from  one  member  of  the 
community  to  the  charafter  of  another,  and  wliich 
forms  a  ftrong  band  in  focial  life,  would  be  fubvertcd  ; 
thebandsof  fociety  eflentially  weakened,  examples  to  virtue 
and  goodnefs,  would  appear  to  be  generally  becl<^uded 
by  the  infirmities  naturally  incident  to  human  kind,ro  as 
to  form  excufes  for  licentioufnefs,  and  apologies  for  vol- 
untary errors.  It  is  therefore  prudent,  on  principles  of 
focial  economy,  to  let  thofe  inftances,  which  mark  the 
imperfeftion  of  human  nature,  remain  without  com- 
ment, or  public  expofure.  This  is  not  a  new  idea,  ei- 
ther in  theory  or  pradbice.  We  all  know  the  force  of 
example,  and  the  overbearing  power  of  fafliion.  We 
all  know  the  reftraint  refultincj  from  the  difapprobation 
of  men  whom  we  ronfider,  as  having  attained  to  a  high 
degree  of  perfection  in  morals  and  propriety  of  condud:. 
We  all  venerate  the  eye  of  prudence,  and  ftand  reproved 
by  the  countenance  of  matured  difcretion.  Why  then 
fhould  an  unprofitable  and  malignant  licentioufnefs  be 
allowed  to  fubvert  a  moft  urgent  ftimulus  to  virtue, 
and  to  weaken,  or  dertroy,  one  of  the  moft  powerful  rc- 
ft^aiuts  upon  vice  ?  . 


ji 


t 


/  t 


/ 


'I 


I 

ll 


If 


f    '4    3 

•  All  men  will  fay,  that  this  ought  not  to  be,  in  a  free 
.^nd  equal  government  j  and  that  every  government 
will,  for  its  own  fake,  and  for  the  fake  of  juftice,  defend 
the  charafters  of  all  its  members  and  fubjefts,  from 
that  kind  of  flander,  which,  from  mere  circumflances  of 
human  weaknefs,  will  expofe  a  man,  and  his  poiberity^ 
to  contempt  and  ridicule  ;  and  much  more,  from  that 
flander,  which,  when  rendered  permanent  by  ink  and 
paper,  or  by  figns  and  pii^fires,  will  wrap  a  charader 
jln  infamy,  fpread  it  abroad  in  difgiace,  and  hand  it 
down  to  pofterity  in  the  habiliments  of  guilt.  Yet  it 
may  be,  that  fome  honed  advocate  for  the  freedom  of 
the  prefs  will  fay^  that  though  flander  committed  tp 
paper  with  the  pen,  ought  to  be  punifhed,  yet  there  is  a 
i'acred  refped  due  to  the  prefs,  and  -that  the  flandei; 
which  iflues  from  the  type  is  a  different  thing. 

If  that  ihnder,  ,which  comes. from  the  prefs,  is  lefs  in- 
jurious than  that  which  comes  imme4iately  from  the 
quill,  it  muft  be,  becaufe  that  which  is  printed  is  not 
fo  worthy  of  credit,  as  that  is,  which  is  feen  in  manu- 
script only.  This  idea  is  not  only  oppofed  to  the  firee- 
■dom,  but  to  the  ufefulneis  of  the  prefs ;  for  if  it  is  a^ 
greed,  that  what  iffues  from  the  prefs  does  not  deferve 
•credit,  merely  becaufe  it  is  produced  under  that  form^ 
then  there  is  a  want  of  confidence  in  this  manner  of 
communication,  and  confequently  the  prefs  has  lofl:  aU 
its  valuable  ufefulnefs.  But  a  produdion  from  the  type, 
if  the  prefs  has  equal  credit  with  a  manufcript  commu- 
nication, as  the  circle  of  communication  is,  in  that  way, 
increafed  in  its  diameter,  fo  the  injury  is  increafed  in 
its  magnitude  ;  and  therefore  the  flander  from  the  pref? 
is  the  moft  injurious,  and  moft  to  be  dreaded. 

But  flill  there  may  be  a  queilion,  whether  a  refliraint 
can  be  laid  on  the  prefs,  fo  as  to  proted  the  individuals 
of  fociety,  in  their  private  capacity,  from  libels  and 
flander,  and  yet  preferve  the  freedom  of  printing,  fo  as 
fully  to  anfwer  the  intentions  of  the  people,  in  their  at- 
tempts to  preferve  the  freedom  of  the  prefs,  as  efl'ential 
i6  the  lupport  of  a  free  government. 

The  aflirmativc  of  this  argument  would  reft  on  the 


■'J 


C     '5    1 


ramt 

duals 

and 

fo  as 

at- 
ntial 


r 


advocate  for  an  unreftrained  liberty  of  the  prefs.  He 
would  have  to  prove,  that  fuch  a  reftraint,as  would  protect 
individual  characters  from  printed  flanders,i8  incompatible 
with  that  freedom  of  printing,  which  is  neceffary  to  the 
thaintenance  of  a  free  form  of  government.  All  I  can 
fay,  is,  that  I  do  not  difcover  the  leaft  degree  of  incom- 
patibility in  the  queftion.  How  can  the  privilege  of 
ilandering  our  neighbours  with  impunity,  be  of  neceffity 
fo  the  maintenance  of  a  free  government  ?  To  the  fup- 
i>ort  of  a  tyranny,  it  may  be  neceffary,  becaufe,  that  every 
tiling  which  derogates  from  the  refpedability  of  the 
people,  increafes  the  power  of  the  defpot,  and  ferves  to 
evince  the  neceffity  of  a  defpotifm. 

Even  though  the  libel  is  true,  yet  being  unjuflifiably 
pubiifhed,  becaufe  it  is  not  done  in  fupport  of  a  claim  of 
right,  or  in  a  legal  profecution,  the  truth  of  it  cannot  be 
given  in  evidence,  as  a  juflification  ;  becaufe  there  is  no 
neceffity  for  the  publication  of  it.  This  has  always  been; 
the  principle  in  the  European  governments,  from  the 
time  of  the  Romans*  to  the  prefent  day.  In  England 
we  find  the  principle  facredly  maintained,  from  the  earli- 
eft  times.  In  the  5th  of  Coke's  Reports  it  was  decidedV 
that  a  libel  is  a  malicious  defamation,  expreffed  either  in 
printing  or  writing,  page  121 ;  the  fame  Report  alfo  de- 
termines that  to  be  a  libel,  which  is  in  figns,  or  piftures,. 
if  it  is  defamatory.  Skinner's  Reports,  1 23,  maintain 
the  fame  principle.  Hobart,  253,  has  the  fame  dodlrine  ; 
and  Hawkins,  93,  and  all  the  later  writers  and  decifions,. 
give  us  the  lame  as  law. 

The  firft  fettlers  in  this  country,- confidered  themfelves 
as  fubjedls  of  the  Englifli  government,  and  declared, 
that  they  came  here  as  free  born  fubjefts  of  the  king- 
dom of  Great  Britain ;  endowed  with  all  the  privi- 
leges belonging  to  fuch."t  And  further  declared, 
that  no  perfon  Ihould  fuffer  in  his  life,  limb,  or  liber- 


n 


GC 


I( 


•  "  Vclfi  quU  ad  infamiam  alicajus  Ubellum  aut  carmen,  aut  hiftoriam  fcrii)ferif, 
"■  compofuerit,"  &c. 

•«  By  the  Roman  law,  the  author  or  publiflier  of  an  infamous  libel  might  be  pun- 
"  ilhed  with  death  if  it  brought  another  man's  life  into  danger  j  but  if  it  did  not  he 
^  was  deprived  of  cajnicity  of  giving  teftimony." 

t  Old  Coloi:;  Laws. 


t 


■•> 


':}' 


f 

»    [ 


C    x5   ■] 


te 


V  1 


|! 


.Vi  ( 


«( 


«( 


<« 


ty,  ^oof/,  tia^ne  or  eftate,  under  color  ot"  law,  but  by 
ibme  exprels  law  of  the  general  court  of  this  colony, 
or  tbc  ^ood  and  equitable  laws  of  ottrnation,  fuitable  foi' 
us,  in  matters  which  are  of  a  civil  nature,  as  by  th« 
court  here  hath  been  accuftomed,  wherein  we  have 
"  had  no  particular  law  of  our  own/* 

This  declaration  proves,  that  the  firft  fettlers  of  the 
country,  claimed  tlie  principles  of  the  Englilh  common 
law,  fo  far  as  thefe  were  fuitable  to  the  fituation  of  the 
country,  as  their  privilege  ;  and  they  trufted  in  the  wif- 
dom  and  pmdcnce  of  their  courts  of  juftice,  to  determine 
what  part  of  thofe  principles  was  fuited  to  their  circum- 
Ifances.  No  law  wis  ever  made  before  the  revolution, 
to  give  an  action  for  flander,  whether  the  fame  was  ut- 
tered in  words,  in  writing,  in  print,  or  otherwife  ;  yet 
fuch  adions  have  been  maintained  on  the  principles  of 
common  law,  ever  fince  the  firil  fetllement  of  the  coun- 
try. This  muft  have  been  done  on  the  idoa  of  the  effi- 
ciency of  the  common  law,  which  had  been  adopted  and 
praftifed  upon  here.  The  common  law,  is  a  fyftem  of 
commonly  received  opinions,.efl;abliflied  by  the  common 
confent  of  the  people,  without  afts  of  the  legiflature,  and 
defined  by  practice  in  the  courts  of  law.  The  idea  of 
having  a  government,  which  does  not  give  a  remedy  in 
fuch  cafes,  muft  be  the  refult  of  an  opinion,  either,  that 
charader  is  of  no  value,  or  that  each  fubjeft  is  left  as  in 
a  Hate  of  nature,  by  the  force  of  his  own  arm,  to  proteft 
that  which  is  mofl  dear  to  him,  to  his  family,  and  to  his 
poflerity.  Where  this  is  the  flate  of  focicty,  there  ought 
to  be  no  law  againfl  duels^  or  ajfajfi nations'  ;  for  thofe 
who  have  ftrength  and  Ikill  to  do  it,  ought  to  be  allowed 
to  defend  their  reputation  by  open  combat ;  while  thofe 
of  lefs  courage,  or  weaker  bodies,  ought  to  be  indulged 
in  private  aflafUnations,  by  way  of  revenge,  on  the  prin* 
ciple  of  the  lex  taitonis. 

It  is  a  faft,  that  among  the  advocates  for  an  unreflrain- 
ed  licenlc  of  the  prefs,  we  find  fomc  of  the  moll  ref'ent- 
ful  perfous,  when  they  are  themfelves,  attacked  in  that 
mode  of  flander.  It  would,  indeed,  be  a  flr::nge,  unrea- 
fonublc  couclulion,  C'at  though  a  man  \^'as  to  have  a 


ti 

c 

t 
«« 

« 

« 

b 

o 
ti 


I  > 


t  17  ] 


remedy,  in  all  cafes,  againft  -written  flander,  yet  that  the 
type  (hould  render  the  evil  fo  lacred,  that  when  the  fame 
libe)  (hall  be  iifued  from  the  prefs,  the  virtue  of  that 
form  ihall  render  the  publication  of  it  a  juftifiable  a£t. 

It  may  be  'well  to  examine,  whether  any  of  the  dec- 
tlarations,  made  by  the  people  on  this  fubjeft,  can  have 
a  conftrudion  tendin?  to  maintain  fo  unreafonab!^  and 
dangerous  a  hypothensi         , 

The  conftitution  of  the  United  States  provid&s,  that 
Congrefs  ihall  "  make  no  law  abridging  the  freedom  of 
**  fpeech  or  of  the  prefs."  It  would  be  as  reafonable 
to  conclude,  that,  as  Congrefs  can  make  no  law  to 
abridge  the  freedom  of  fpeech,  every  one  is  at  liberty  td 
utter,  in  words  fpoken,  what  flander  he  pleafes,  with  im- 
punity, as  to  conclude,  that  becaufe  Congrefs  can  make 
no  law  to  abridge  the  freedom  of  the  prefs;  every  one 
may  be  allowed  to  print  and  publifti,  of  his  neighbor, 
what  flanders  he  pleafes  to  publifh.  Biit  take  thisj  dec- 
laration upon  the  fame  principles  of  conftruftion,  as  oth- 
er declarations,  afits  and  produdions  are  taken  ;  that  Is 
according  to  the  fubjeft  matter  of  it,  and  it  can  have  no 
other  meaning  than  this,  that  the  meafures  of  the  gov- 
ernmieht  of  the  United  States  (hall,  at  all  times,  and  on 
all  occafions,  be  open  to  a  public  examination  in  the  prefs. 
How  fuch  an  es^amination  is  to  be  conduced,  according 
to  the  proyifions  of  the  conftitution,  is  to  be  the  fub- 
jeft  of  another  feftion^ 

The  conftitution  of  MaflTachufefts,  declares,  that  "  the 
**  liberty  of  the  prefs  is  eflfential  to  the  fecurity  of  free- 
**  dom  in  a  ftate.**  But  this  can  never  have  a  ^onftruc- 
tion,  to  render  ptinted  flander  againft  thofe  whom  the 
conftitution  has  agreed  to  defend,  as  juftifi'able ;  whert 
the  fame  conftitution  declares,  "  that  the  end  of  govern- 
"  ment  is  to  furni/h  the  individuals  who  compofe  it, 
"  with  the  power  of  enjoying,  in  fafety,  and  tranquillity 
"  their  natural  rights,  and  the  blefllings  of  life."  To 
.  believe,  that  men,  under  the  preflure  of  calumny,  and 
overborne  with  flander,  can  enjoy  the  bleflTings  of  life  in 
tranquillity,  is  to  fuppofe,  that  thev  have  loft  all  fenfe  of 

C 


:l 


i 


I 


u 

i. 


l\ 


,  ■ 


[     18     ] 

honor  and  reputation,  and  are  no  more  than  favage  bar- 
barians. 

I'hc  fame  declaration  in  New  Hampfliire,  will  have 
the  fume  conftrudion.  Tlie  ftate  of  Penufylvania,  pro- 
viJts  for  the  freedom  of  writing  and  printing,  but,  alfo 
provides,  that  he  who  prints,  or  writes,  fhall  be  refponfi- 
ble  for  fhe  abufe  of  the  liberty  he  has  exercifed.  \. 

The  other  flates  make  the  fame  declaration,  that  the 
liberty  of  the  prefs  is  eflential  to  a  free  government,  anu 
that  it  ought  therefore  to  be  inviolably  prefcrved.  But 
none  of  them  intimate  an  idea,  that  fuch  a  due,  and  prop- 
er reflraint,  as  fliall  be  adequate  to  the  prefervation  of 
the  charafters  of  individuals  from  flahder,  would  be  an 
undue  reflraint,  or  by  any  means  amount  to  fuch  a  re- 
jflraint,  as  would  endanger  the  frcedoth  of  the  govern- 
ment, or  be  fubverfive  of  the  principles  of  civil  liberty. 

Since  the  hiilory  of  the  human  .ace  exhibits  full  evi- 
dence, that  in  every  age  of  the  workU  a  good  narhe  has 
been  efleemcd  as  precious  ointment,  and  as  of  the  high- 
eft  vi^Kie,  it  would  be  a  very  ftrange,  and  unfortunate 
circumllance,  if  in  this  enlightened  day,  and  in  this  free 
;uid  highly  civilized  country,  we  could  not  maintain  our 
governments,  without  a  eonftitutional  licenfe  to  calunmy 
and  detradion. 

The  freedom  of  the  prefs,  in  regard  to  men  in  public 
ftations,  is  of,  at  leaft,  as  much  conftquence,  as  it  is  in 
regard  to  private  individuals.  The  idea,  that  a  man's 
being  in  office,  renders  him  a  fit  mark  for  the  nialignaiit 
arrows  of  flander,  is  no  lefs  injurious  to  the  rights  of  in- 
dividual citizens,  than  it  is  to  the  government  at  large. 
It  cannot  be  confidered  as  of  no  importance  to  a  man, 
V'hether  he  fiiall  have  an  opportunity  to  improve  his  tal- 
ents in  his  country's  fervice  ;  whether  he  fliall  ihare  in 
the  honors  of  his  government,  or  enjoy  the  confidence 
of  his  nation.  Every  one  has  a  right,  by  fair  and 
honcft  means,  to  poffefs  himfclf  of  a  place  in  the  admin- 
ytration  of  government,  and  to  obtain  an  office,  which, 
while  it  renders  him  ufeful  to  the  public,  will  promote 
the  honor  and  happinefs  of  his  family.  But  if,  as  foon 
as  he  iiJ  in  office  his  enemies,  and  others y  have  a  right 


C   19   ] 


IS  in 
man's 


large, 
man. 


to  defame  his  chara^ei ,  and  to  charge  him  with  corrup- 
tion and  wickednefs  in  liis  public  condud,  or  even  to 
reprefent  him,  through  the  prefs,  as  a  weak,  unfuitable 
perfon  for  the  office,  the  befl  part  of  the  community, 
the  men,  who  hold  a  good  character,  as  of  high  value, 
will  not  run  the  hazard  of  holding  an  office  or  place  ; 
and  of  coutfe,  the  word  and  moft  unfuitable  men  will 
be  called  forward  to  take  the  care  of  the  government  : 
and  thus  by  the  power  of  their  own  (lander?^  gain  an 
opportunity  to  plunder  the  people.  7      ;;  ;     j  : 

There  can  be  no  man  of  rtny  confideratlon,  who  will 
facrifice  his  own  reputation,  by  advancing  it  as  a  princi- 
ple/that  the  prefs  (hall  be  free  to  abufe  and  flandpr  a 
man,  merely  becaufe  he  holds  a  public  office  ;  but  there 
are  fome  who  believe,  that  a  libel  againlt  a  mngiftrate, 
or  public  officer,  may  be  juftified,  by  proving  the  charge 
in  the  libel  to  be  truie.  There  are  dec.arati^ns  in  the 
conftitutions  of  Pennfylvania,  and  the  Tenneflee  dates, 
which  maintain  the  idea,  that,  **  in  profecutions  for 
**  publications  of  papers^  inveftigating  the  official  con- 
"  dudl  of  officers,  and  men  of  public  capacity,  or  where 
"  the  matter  publiHied  is  proper  for  public  information, 
^*  the  truth  thereof  may  be  given  in  evidence,'* 

Thefe  dates  having  made  this  provifion,  there  can  be 
no  do\ibt  but  that  men  may  puMifli  what  they  diall 
pleafe  within  them,  on  the  official  conduft  of  men  in  of- 
fice, provided  they  have  their  proof  ready  at  hand  to 
maintain  the  charg6.  But  even  this  is  a  redraint  upon 
the  prefs  ;  for  if  any  thmg  is  publilhed  which  cannot  be 
proved,  the  author  and  publifher,  are  liable  to  profecu- 
tions and  fevere  punifhment,  I  do  not  know  what  the 
law,  in  this  refpeft,  ha4  before  been  in  Pennfylvania ; 
the  other  date  did  not  exid  previoufly  to  its  prelent  con- 
ditution  which  formed  it  ;  but  iji  the  other  dates,  fuch 
a  provifion  if  taken  in  a  Hteral  fenfe,  un?onnefted  with 
the  fubjeft  matter,  would  have  been  an  exprels  altera- 
tion of  the  common  law,  as  before  ufed  and  praftifcd  in* 
them. 

In  the  other  dates,  there  may  be  quedion,  whether 
the  liberty  of  the  prefs,  guarded  in  their  conditutions. 


/ 


.1 


I 


If 


>    S| 


ll 


if 


.Hj 


iU 


m 


i\ 


C      50      ] 

&s  an  impottant  privilege,  h^s  or  has  not  the  famQ 
meaning  as  h  expreffed  in  the  conftitution  of  Pennfylva-^ 
nla.  New  Hai-ipfhire  fays  the  liberty  of  the  prefs  ought 
to  be  inviolably  preferved.  Maffachufetts  fays  it  ought 
not  to  be  rejirained.  Maryland  fays  the  liberty  of  the; 
prefs  ought  to  be  inviolably  preferred.  North  Carolinji 
and  Georgia  fay  the  prefs  ought  not  to  be  rejirained. 
The  dates  not  mentioned,  leave  it  to  the  public  opinionl 
according  to  the  principles  of  the  common  la>y,  as  ufea 
and  pradifed  upon  in  them, 

As  by  the  conimon  law  of  England,  adopted   and 
pradifed  upon  in  the  feveral  Rates  before  the  revolu- 
tion, the  truth  of  ^  libel,  or  written  or  prpted  flander^ 
could  not  be  given  in  evidence  to  juftify  th^  publication, 
the  quedion  is,  whether  fuch  an  alteration  is  made,  by  the  . 
declarations  recited,  or  by  the  nature  of  the  govern-  ^ 
ments  in  the  nation,  and  in  the  feveral  dates,  as  (hal| 
place  this  principle  on  a  fopting  fimilar  to  what  it  is,  i4  \ 
the  dates  of  Pennfylvania,  Kentucky  and  Tenneffee. 
The  redraint  guarded  againd,  i^.  not  defined  m  any  o^ 
thofe  dates,  and  it  is  faid,  that  the  liberty  of  t^  prefs 
fhall  be  inviolably  prefer ve4,  there  is  do  definition  of 
what  that  liberty  of  the  prefs  is.    But  the  main  objed  is  . 
apparent ;  that  there  ftiall  be  no  fuch  redraint  upon  the 
printing,  and  publidiing  fentime];its,  and  opinions  upon 
public  men  and  meafures,  as  ftiall  prevent  a  free  and  nec- 
e0ary  commun::^Mon  of  ideas,  for  the  prefervation  of  lib- 
erty and  the  fup port  of  the  principles  of  the  conftitution. 
I  therefore  conclude,  that  thefe  conftitutions  have  not . 
changed  the  common  law  principle  adopted  and  uniform- 
ly acknowledged  in  the  country  j  nor  do  they  differ  effen-^ 
tially  from  thofe  of  the  other  dates. 

When  we  come  to  confider  the  evils,  ajid  injuries, 
which  would  refult  from  a  judification  of  a  written  or. 
printed  libel,  or  defamation  againd  a  public  pl&cer,  and 
fee  that  no  public  advantage  can  poflibly  arifefrom  itj^ 
every  reafonable  man"  will  be  contented  with  the  old  fet- 
tled form  of  principle.  V       ,       >^}»..  : 

1  here  mean  to  make  a  didindion  between  a  charge, 
made  in  a  publication  againd  an  officer,  for  his  havin^^ 


m 


21 


% 


potruptly  taikefi  bribes,  qi  bay)pga£ted  wrong  an^  ^n^ 
juftly  from  corrupt  motives,  ^nd  the  adb  which,  iT>ay  have 
proceeded  either  from  fuch  motives  or  from  others  ii)dil'- 
f:nniinately.    Jn  the  next  fe^on,  under  the  liberty  of-^he 
pirefs,ini;egar4  to'^c  meafures  of  government,  I  mean, 
tq  maintain!  that  |t  cannot  be  criminal  to  publifli  what 
the  government  in  fa£ik  does,  and  that  therefore  the  truth 
of  the  publication  may  be .  given  |n  evidence j  as  a  judifi- . 
cation  under  the  prpncjution.    But  \  ain  npw  fpcaking  - 
of  ^  cl^arge  of  corruption,  for  which  a  Qiagidrate,  or 
jl^ubUc  p^per,  ^ay  be  removed  from  his  ofTice,  or  puu- 
ifhed  <:r/W«^fV<r, ,  for  the  fraud  or  cpr^uption  ;  or  be 
difplaced  for  ^^st^k^j^f^  incapa^ityji  pr  it^ipropricty  of 
fonduft in  his  o0;ual  capacity.  i,\Ti:r:r. 

r^h^re  wa^  b^  a  queibon,  what  good  a  pubUcation, 
cliarging  a  public  ofpc^i;  with  ^orri^t^on,  can  do  ?  It  )ic 
leels  himlelf  guilty,;  h^  will  nev<^r.  procure  2^,  profecuaoai 
tor  tt^e  libel.    If  ijfie  publiiher  of  thv  charjo^u  has  the  ev- 
idence to  I)(lainta^^  it,  he  may  lay  it  before  a  legal  aiiU 
propisr  tribvup^l,  with  much  lefs  trojifbit:   thaa  h^  (;an  go : 
to  the  prel^,     Unlefs  the  charge  is  ^tog^ther  grpundki's, 
and  he  knows  it  to  be  fo,  he  runs,  no  hazard  by  a  profecu- 
tipn  before  a  gnn^ '  jury  and  a  competent  court.     Even 
though  he  ihaU  fail,  unlefs  his  attempt  is  groundic^f;,'  and 
malicious,  he  is  npt  liable  to  damage^.     What  advan- 
tage, (:an  then  refult  from  printing  a  charge,  which,  if, 
true,  can  be  in(^ed  into;  by  a  court  of  juilice,  wh^re*- 
the  man  charged  ^wiil  have  a  fair  chance  to  defend  hinv- 
ielf,  if  he  is  innocent,  and  the  pu^ic  ,,t^e,-.a4yantage  of, 
puniihjng  him,  if  he  is  guilty  ?    j  . .,. , .  •;,.'-        n  -^ 
.  '  If  s^  ptlzen  has  a  privilege  of  confequ^ce  enough  to 
contei^d  far,  it  i^  that  of  a  fair,  impartial,  and  candid  tri- 
al >^hen  he  becomes  the  fubjei^t  of  a  criminal  profecutjon. 
But  if  he  can  be,  before,  charged  in  a  gazette,^  with  the 
fam&criime,  the  public  opinion  will  be  foreflalled,  and 
^  therftc^bei^qcertainty  of  obtaining  a  fair  trial  by  a  jury. 
The  publicatipif  of  the  cprruption,  or  vveaknefs  of  an  of- 
ficer's- condu^  <paij  bono  foundation  for  his  removal  ^ 
for  the  ga,zejt4eisrao  evidence  in  itfelf,  n,or  can  any  court 
take  cognizance  of  a  qharg^  made  in  (hat  manner.    It- 


I  H 


J 


/ 


,  I 


I 


i 


17 


li 


1^- 


o 


c  "  r 

may  be  faid,  tliat  an  unrcftrained  liccnfe  to  pubFifh  on 
ihccondudl  of  public  men,  would  operate  a,s  a  rcftraint 
upon  them,  and  thus  promote  the  public  good  ;  but  this 
is  not  true  ;  an  unredrained  licenfe  to  publifh  flander  a* 
gainft  public  officers,  would  very  foon  be  imprpvedj  by 
men  who  wifh  their  removal,  and  by  others  who  refent 
the  uprightnefs  of  their  conduft,  ov  who  '  have  private 
quarrels  with  them  on  other  pccafions,  in  fuch  a  man- 
ner that  the  flandcrs  uttered  from  the  preft,  though  ren- 
dered of  lefs  cohfequence,  and  receivetl  as  matters  of 
courfe,  would,  while  they  wound  the  fceKngs  of  him  to 
whom  they  fhall  be  pointed,  pafs  unnoticed  as  to  pu^lic^ 
profecutions,  and  anfwer  no  poiRble' valuable  purppfir 
to  the  community.  ' 

If  the  officers  of  government  are  guiky  of  comiptioix 
or  fraud,  there  are  tribunals  to  punim  them ';  the  grahd 
jury  may  indict,  and  the  houfe  of  repnefentatives,  on  the 
fapported  complaint  of  an  individual,  may  impeach  be- 
fore the  fenate  ;  and,  in  nearly  all  the  ftates,  thtre  rriiiy 
be  a  removal  from  office  for  weaknefs  ind*  ini^apacity  ; 
but,  where  there  is  no  power  of  removal,  the  publication 
of  the  officer's  incapacity  can  do  no  good  ;  and,  where 
there  is  fuch  power,  the  publication  can  furnilh  no„ 
grounds  for  a  removal.  ,        .        .      apSi^ 

Yet  it  may  be  aflced,  why  the  truth,  in  regard  to  the 
officer's  corruption  and  fraud,  (hall  hot  be  pu"blifhed  ? 
The  anfwer  is,  that  if  it  could  be  rendered  certain^  that 
nothing  but  the  truth  would,  under  fuch  Kcenfe,  be 
publifhed,  there  might  be  lefs  objeftion  to  it.     For  then;- 
1  he  mere  publication  wouldamount  to  proof 'of  his,  guilti,'^ 
v.hd  he  might  be  removed,"  or  otberwife  piiniflied  with- 
out a  trial.     But  this  idea  is  againft  the  tenor  of  all  our 
conflitutions.     No  man  is  to  be  condemned  until/  his, 
crime  has  been  fully  and  plainly  defcribcd  ifo  him,'  nor; 
until  he  has  had  an  opportunity  to  be  heard  in  M's'own' 
defence.     Should  a  charge  be   made  in  the  gazette  a-: 
g;unft  a  public  officer,  he  would  be,  if  he  w^s  innocenti 
under  feme  neceffity  to  commence,  or  tP  procure  to  be 
commenced,  a  profecution  againft  the  printer  orauthor, 
oi'  againd  both,  more  efpecially  if  they  could  give  the 


i:i 


r  ^3  ] 


truth  of  the  charge  in  evidence  to  defend  themfelves ; 
othcrvvife  he  might  be  fuppofed  r()  be  afraid  to  bring  his 
cor  luft  into  legal  difquifition.  This  would  give  a  firft, 
01  principal,  magiflrate  bufuiefs  enougii  •  >  do,  vrithout 
attending  to  matters  of  (late.  £very  tranlaction  muifc 
be  opened  and  explained  beiuic  a  jury,  and  the  fecrets 
of  the  flate,  in  many  inflances  at  lead,  be  expofed,  in  or- 
der to  maintain  profecutions  againft  men  of  no  confer 
quence,  but  who  would  hope  to  rife,  even  from  a  con- 
vidion  and  punifhment. 

There  is  therefore,  no  doubt,  but  that  the  declaration, 
on  this  fubje^,  in  Pennfylvania,  has  a  redrained  mean- 
ing, and  is  not  intended  to  be  taken  altogether  in  its  lit.* 
era!  fenfe.  Whatever  a  government,  or  officer  of  ftatc 
does  in  his  civil  capacity,  mud  be  open,  and  public 
a£ts.  The  prefident's  appointments,  his  embalTies  and 
treaties,  the  laws,  refolves,  and  orders  of  the  legiflature, 
the  judgments  and  decifions  of  the  judges  and  magil- 
trates,  are  all  public  a£ts  ;  they  not  only  may  be,  but 
they  ought  to  be  made  public  through  the  prefs.  If 
they  are  wrong,  the  people  ought  to  know  it,  if  they  are 
right,  they  ought  to  be  given  to  the  public.  But  thele 
ought  to  be  accurately  and  truly,  publifhed  ;  and  there 
ought  not  to  be  a  publication,  or  aflertion  of  public  adts 
or  proceedings,  which  had  never  been  made  or  done. 
When  a  publication  of  this  kind  is  made,  it  is  fit  and 
reafonable  that  the  truth  fhould  be  a  judification.  If  the 
idis  done  or  pafTed  are  wrong,  yet  as  errors  may  happen 
without  corruption,  the  exidence  of  the  adt  can  be  no 
judification  of  a  charge  of  bribery  or  corruption,  or  of 
an  intent,  or  combination  to  overthrow  the  government, 
or  to  fubvert  the  liberties  of  the  people  ;  and  therefore 
the  proof  of  the  aft  can  be  no  judification  of  a  charge  of 
treafon  or  corruption  in  them,  or  hina  ,who  elFefted  il. 
There  can  therefore  be  no  reafon  to  believe  that  Penn- 
fylvania ever  intended  any  thing  more,  than  a  mere  11- 
cenfe  to  publilh  what  had  been  in  facl  done  by  the  gov- 
ernment, or  by  its  officers,  in  an  official  capacity,  inde- 
pendent of  any  charge  for  grofs  immoralities,  corrup- 
tions or  frauds',  by  them  pcrfonally  comuiilicd.  . 


I 


:  J 


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I'M  , 
III 

■«  it  ^ 


¥^ 


t     24    1 

¥0  expfjiin  this  idea  iriote  fidly,  it  may  be  obfcrv^tf; 
t^af  a  kaguc  bt  combinatidh  ih  a  prefident,  governor, 
or  other  magiflratei  fo  fubvfert  or  change  the  form  or 
nature  of  the-  government  bjr  force,  and  without  the  con* 
fcnt  of  the  jiicbple,  grvtn  in  the  form  vtrhich  is  provided  by 
<he  conftituHori,  is  treafon  of  itfelf,  treaibn,  even  thotign 
there  fliould  never,  in  h6i,  be  an  opeii  attempt,  or  aii 
ftvert  aft  in  purfuance  of  it.  There  could,  be  no  necefr 
fity  for  j^zetf e  piiblicatibns  dn  this  poiilt,  beCatlfe  &  pab- 
lic  profecution  for  a  crjme  of  the  firft  magnitude  Ought 
to  be  immediately  commenced.  But  Ihould  there  be 
fiich  publication  made,  on  full  proof,  the  "ftature  of  th6 
Ciife,  and  public  jeopardy,  i«rould  julfify  it.  T^e  l«igue,| 
or  combination  being  fairly  dated,  the  public  wouM  ht 
left  to  deterniine,  how  far  the  danger  had  been  extend- 
ed, and  the  tribunals  of  juftice,  how  hf  it  amounted 
to  treafon,  and  whether  the  nature  of  the  tombination 
tt-uly  ^/tv«  through  the  prefs  is  not  a  juft'fiable  a£fc: 

When  a  jiidge,  magiilrate,  or  any  officer,  civil  of  ex^ 
ecutive,  fliall  take  a  bribe  in  his  office,  to  induce  him  to 
do  wrong,  or  (hall,  by  ektortion,  take  that,  which  he  hag 
no  right  to  take,  in  order  to  induce  him  to  do  that,* 
which  it  was  his  duty  to  do  wirfiout,  whether  any  thing 
IS  done  in  cohfequence  of  it,  or  not,  it  is  a  crime  in  it- 
feif,  and  is-  riot  the  fubjeft  of  a  gazette  elfay,  but  a  mat- 
ter for  aii  indiftment,  or  impeachment,  and  ought  to 
be  taken  utr  in  that  way.  The  aft  done  in  confequenca 
of  fuch  bribe,  or  the  cortupt  refufal,  when  it  is  the  of^ 
ficer*s  duty  to  aft,  ar6  diftmft  fafts  firom  the  crimes  of 
bribeiy  or  extortiori.  They  may  be  criminal,  or  they 
may  be  only-an  error  of  judgment  ;'  and  as  they  may", 
or  may  not  proceed  from  con  uption,  fo  they  are,  or  are 
not  punifhable as  crimes,  as  they  are,  or  are  not  conneft- 
cd  with  corru|:/t  motives.  But  bribery  and  extortion, 
are  crimes  in  themfelres,  limply  confidered,  without  a 
connexion  with  any  Cohfequent  aft  or  denial.  What- 
ever an  officer,  therefore,  does,  or  whatever  he  denies 
to  do,  may  be  puhlffhed,  without  the  danger  of  being 
tharged  wiih  a  liSd,  unlefs  the  faft  publifhed  is  felfe. 
But  pubHfhing,  that  he  had. received  a  bribe,  is  charg- 


■Ml 


/ 


lenies 

being 

felfe. 

:harg- 


•  t  »s  3 

ing  him  with  a  crime  in  an  open  and  public  manner^ 
where  no  proof  can  be  o&red  againft  him,  where  he 
can  by  no  means  make  a  defence,  and  where  there  is  no 
exifting  tribunal  to  l*ender  judgment. 

Should  it  be  faid,  that  the  perfon  who  is  made  the  fub- 
jeft  of  the  libel,  n\ay  have  his  aftion,  or  profecution  a- 
gainfl  the  printer,  and  that  the  truth  of  the  libel  may,  on 
th'it  be  inveftigated,  the  anfwer  is,  that  this  would  be  un« 
reafonable  and  unjuft,  becaufe  it  would  involve  all  pub- 
lic fervants  of  the  people  in  iitigatious  fuits  to  difcharge 
themfelves  from  accufations,  which  would  never  be  pro- 
duced againft  them  by  a  grand  jury,  or  by  a  judicial  in- 
queft.  Befides  this,  if  there  could  be  one  libel,  there 
could  be  a  hundred  for  the  fame  thing  ;  and  if  thefe 
publications,  had  any  weight  in  the  public  opinion,  they 
would  create  a  prejudice,  which  would  deprive  the  party 
injured  of  a  fair  and  impartial  trial.  This  is  in  its  na- 
ture, an  oppofition  to  the  principle  expreffed  in  the  con- 
ftitution  of  Maffachufetts,  and  maintained  by  the  tenor 
of  all  the  otherS)  that  no  man  (hall  be  held  to  anfwer  to 
a  charge  for  a  crime,  imtil  the  fame  (hall  be  fairly  and 
folly  dcfcribed  to  him. 

The  fimple  faft  of  an  officer's  having  done,  or  refufed 
to  have  done,  any  thing  in  his  office,  is  not  a  charge  o( 
eriraihality  againft  him,  yet  if  it  is  falfe  and  malicious, 
and  he  fliall  be  injured,  or  receive  any  fpecial  damage  by 
fuch  publication,  he  may  hatve  his  remedy  by  an  aftion 
for  the  libel,  and  be  recompenfed  in  fuch  fum  of  money 
sis  a  jury  fhall  adjudge  to  be  adequate. 

The  tranfaflions  of  government,  may,  in  fome  inftanc- 
es  be  wrong,  and  even  unconftitutional,  and  yet  the  au- 
thors, and  agents  have  no  corrupt  intentions.  Thefe 
may  all  be  publifhed,  and  their  Confcquences  be  detailed, 
and  dilated  upon,  without  charging  the  men  who  effeft 
the  meafure  with  crimes.  When  the  earl  of  Chatham 
in  his  nervous  language  faid,  that  the  earl  of  Bute  had 
brought  the  king  and  kingdom  of  Great  Britain  to  the 
brink  of  ruin,  he  did  not  charge  him  with  a  crime,  be- 
caufe, as  the  carl  of  Bute  had  been  prime  minifter,  this 
might  all  have  been  done  by  him,  from  error  and  weak- 

D 


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I.'  '^ 
I       ! 


I     26     3 

hefs  ;  and  without  any  corrupt  intention.  But  h^A 
Chatham  charged  Bute  with  having  done  this,  with  a 
traitorous  intention  to  overthrow  the  government,  or  de-. 
throne  the  king,  he  would  have  charged  him  with  a 
crime  :  or  had  he  charged  hini  with  a  con/piracy  againft 
his  fbvercign,  or  of  having  corruptly  received  a  Jiipend from 
another,  fovereign,  there  muft  have  been  an  inquiry  into 
the  fa£t.  Should  it  fo  happen,  that  when  the  meafures 
of  any  department  of  the  government,  (hall  be  pubiiflied, 
the  people  fhall  be  alarmed,  and  ^ark  jealoufies  fhall  a- 
rife  ;  fhould  there  be  falfe  confequences  drawn,  aiid  er- 
roneous reafonings  be  exhibited  on  the  tendency  and 
confequences  of  thofe  meafures^  there  can  be  no  poiTible 
way  to  cure  fuch  an  evil,  but  by  giving  to  patience,- and 
experience  their  perfect  work.  ; 

There  are  other  cafes,  where  the  exercife  of  the  ;liber- 
ty  of  the  prefs  may  injure  individual  citizens,  and  yet, 
the  truth  of  what  is  publilhed,  or  the  caufes  and  circum- 
ilances  of  the  publication,  muft:  excufe  the  author  and 
printer  from  punifhment.  K  mail  allows  Iris  friends  to 
propofe  him  to  an  office  under  the  fuffragjES  of  the  peo- 
ple ;  and  others  undertake  to  examine  his  charadery 
and  to  fhew  that  he  is.  unfit  for  the  ofhce.  In  this  cafe, 
there  are  no  deciiions,  or  legally  eflablifhed  opinions,  to^ 
guide  our  inquiries,  and  we  can  therefore  only  rqafpn  on 
tiie  queilion,  according  to  what  is  conceived  to  be  tt^e 
principles  of  reafon  and  judice  *,  and  we  may  gain  un- 
derftanding  from  the  praftice  of  nations  on  the  fubjedb. 
On  the  one  hand^,  it  will  not  do  to  fay,  that  when  a  man 
is  propofed  as  a  fuitable  character  to  till  an  office  to  be 
given  by  the  fuffrages  of  the  people,  that  his  incapacity, 
incompetency,  or  inability  to  fuftain  it,  fhall  not  be  af- 
ferted  with  as  much  publicity  as  the  propofal  of  his  elec- 
tion is.  This  would  be,  to  allow  any  one,  however  un- 
fuitable  he  may  be,  to  palm  himfelf  upon  the  people,  to, 
the  great  injury  of  the  nation.  We  therefore,  have  a 
right,  through  the  medium  of  the  prefs,  to  communicate 
our  opinions,  in  regard  to  the  character  of  every  candi- 
tlate,  and  to  aflign  our  reafons  for  thofe  opinions.  I'lic 
{ncfd  is  as  free  for  him  and  his  friends,  to  combat  our 


1 


a 
a 
d 
c 
t 
1( 

D 
fi 


'<•' 


■  * 


It  lla^ 
with  a 
or  de-i 
with  a 
againfi 
ndfront 
iry  into 
leafures 
blilhed, 
fliall  a- 
a?id  er- 
cy  and 
pofiible 
Lce,.and 

ie;iiber- 
andyet, 
circum- 
hor  and 
iends  to 
the  peo- 
lara^ery 
his  cafe, 
lions,  to» 
jajfpn  on 
o  be  tl^e 
tain  un- 

fubjeft. 
n  a  man 
;e  to  be 
:apacity, 
3t  be  dS- 
his  elcc- 
ever  uu- 
ople,  to, 

have  a 
nunicatc 
•y  candi- 
is.  1'hc 
ibat  our 


opinions,  and  to  fliew  that  our  reafons  are  not  fupported 
bh  good  foundations,  or  to  vindicate  his  charafter  from 
felfe  afperfions,  tending  to  fhew  him  to  be  no  proper  can- 
didate, as  it  is  for  us  to  call  his  eligibility  or  competen- 
cy into  queftion.  On  the  other  hand,  it  will  not  do,  to 
allow  men,  merely  becaufe  one  is  nominated  to  office,  to 
charge  him  falfely,  and  malicioufly,  with  crimes,  and 
fcandalous  conduft,  for  which  he  ought  by  law  to  be 
puniflied,  or  which  would,  if  he  is  guilty,  amount  to  a 
difqualification  to  office.  Yet  if  he  is  thus  guilty,  he 
who  proclaims  this  to  thp  public,  and  thus  prevents  a 
villain  from  obtaining  the  public  confidence,  to  which  he 
has  no  juft  pretenfions,  does  his  coumtry  an  elTential  fer- 
vice. 

In  this  cafe  the  party  who  may  be  charged  with  a  li- 
bel againft  another,  is  taken  out  of  the  reach  of  the 
principle,  that  he  who  publifhes  a  libel  againft  another, 
cannot  be  allowied  to  juftify  the  publication  by  the  truth 
of  the  fads.  This  queftion  would  be  decided  on  the 
fame  principles,  as  that  where  a  fuit  or  profecution  is 
brought  before  a  proper  tribunal  authorifed  to  difcufs, 
and  decide  on  the  queftion.  The  candidate  opens  his 
claim  to  the  public,  every  member  of  the  community 
has  an  intereft  in  the  event,  the  whole  people  are  to  de- 
cide on  the  queftion,  he  conftitutes  them  his  judges, 
and  there  is  no  other  way  to  bring  the  queftion  be- 
fore the  public,  than  by  the  prefs  ;  and  therefore  every 
one  in  the  community,  has  a  right,  in  the  fame  way,  to 
lay  his  objedions  before  the  people,  in  order  to  prevent 
the  election. 

In  all  cafes  of  criminal  profecutipns,  each  citi:i!:en  has 
a  right  to  exhibit  his  complaint  againft  another,  and  no 
adion  or  profecution  lies  againft  him  for  it,  unlefs  it  is 
done  malicioufly,  and  groundlefsly.  Whether  it  was 
done  malicioufly,  or  not,  will  appear,  generally,  from 
thofe  circumftahces  which  fhew,  whether  it  were  ground- 
lefs  or  not.  So  in  the  cafe  of  an  eleftion,  the  publlQier 
of  any  thing  againft  the  candidate,  which  in  itfelf,  is  de- 
famatory and  fcandalous,  ought  to  be  refponfible  ;  and 
Jieavy  and  aggravated  damages  ought  to  be  given,  unlefs 


H 


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w- 


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i  i'l 

m 


\in 


^ 


!  f '-s 


ta,i»»-  ^»  -  T'  ■ 


he  can  juftify  himfelf  on  the  truth  of  the  publication,. 
But  if  he  publifhes  the  truth  only,  he  ought  to  be  aX% 
lowed  to  jufl,ify  his  conduf);  upon  the  proof  of  the  h&a  y 
^nd  in  fuch  cafe  the  plaintiff  by  his  acrioA,  will  only  exu. 
pofe  his  own  folly  and  weaknefs,  in  attempting  to  gain 
an  office,  to  which  his  mifcondud  and  vices  have  xeiv» 
dered  him  inconipetent. 

..  In  thefe  obfervations,  two  leffons  are  contained.  One 
is,  that  he,  who  allows  himfelf  tq  be  prc^pofed  as  a  can- 
didate on  an  ele£tion,  ought  to  confider  whether  his 
charader  can  bear  the  teil  of  public  fcrutiny.  The 
other  is,  that  when  an  ele£Uon  i^  in  queftion,  every  one 
who  writes,  or  publifhes,  againit  the  candidate,  ought  to 
have  his  pfoof  ready  at  hand  to  meet  him  before  a  tri«. 
bunal  of  civil  jufUce,  if  he  charges  him  \ntb  a  crime,  or 
with  fcandalous,  or  infamous  condud ;  or  even,  if  he 
charges  him  with  weaknefs,  incs^acitv,  or  a  want  of  ia* 
tegrity,  and  thereby  de&ats  his  ele^iqn,  it  would  be 
reafonable  to  fuppofe,  if  this  was  prov^  to  have  been 
done  malicioufly,  fal&ly,  without  any  £aundation,  that 
an  adion  would  be  maintained,  and  proper  damages  be 
given  by  a  jury. 

The  liberty  of  the  prefs,  as  it  refpe^s  the  government 
and  meafures  of  adnuniflration  in  a  flate,  is  not  fo  eafy 
to  be  adjufled  ;  yet,  perhaps,  a  little  careful  attention 
will  place  it  on  reafonable  grounds,  and  exhibit  it  on 
conflitutional  principles. 

The  United  States  in  all  their  conftitutlons  clearly  in- 
tended to  preferve  a  free  communication  of  ^^ntiments, 
and  opinions,  in  every  flate,  as  to  matters  of  government- 
al concernment.  The  public  opinion,  in  the  mpfk  ar- 
bitrary government,  has  its  irrefiflible  uifluence  and  ac- 
knowledged efFe£t.  The  great  art  of  government,  in  a 
defpotifm,  is  to  gain  the  public  opinion  in  favour  of  ty- 
ranny. This  is  done  by  promotions,  by  bribery,  by  cor- 
ruption, and  by  terror.  We  have  many  examples  in 
ancient,  and  modern  hiftory,  where  the  change  of  public 
opinion  has  efFeded  a  revolution,  has  totally  altered  the 
dynafty  of  nations,  dethroned  one  family  and  fet  up 
anoiher ',  taken  away  the  father  and  enthroned  the  fon> 


n 


and  even  changed  and  rcschanged  the  form  of  the  gov- 
ernment.   The  princes  and  defpots  of  the  world  are 
afraid  to  acknowledge  the  force  of  public  opinion,  and 
yet  all  their  movements  are  predicated  upon  a  convtdion 
of  its  force.    In  America,  we  have  made  the  public 
opinion  the  guide,  and  fafety  of  our  fyftems  of  civil  gov- 
ernment ;  but  to  avoid  the  errors,  and  wildnefs,  with, 
which  the  public  opinion  has  been  generally  conduded 
in  other  countries,  we  have  marked  the  place  of  its  cur- 
rent is  our  civil  con^litutions  ;  that  fo  it  may  move  on, 
in  the  form  of  frequent  elections,  curing,  by  filent  votes, 
the  mifchiefs,  which  in  Europe  demand  the  remedy  of  a 
civil  commotion.    There  can  be,  then,  no  danger  in  ap- 
pealing to  the  public,  on  the  tranfadions  of  a  govern- 
ment, where  the  manner  and  meafure  of  the  public  will 
are  thus  regulated.    The  idea  that  the  body  of  the  peo- 
ple are  incapable  of  judging  in  the  public  concerns  of 
flate,  is  in  itfelf  an  oppofition  to  the  principles  of  the 
governments  in  America  ^  becaufe  they  are  all  founded 
in  the  fentiment,  that  the  people  at  large,  will  maintain 
them  on  the  coniiderations  of  intereft.     It  cannot  there- 
fore be  wrong  to  fpread  the  concerns  of  the  ftate  before 
the  people,  that  their  opinions  may  be  formed  on  the 
meafures  of  the  adminiftration.     And  I  ihould  conceive 
it  to  be  very  dear,  and  a  well  eftabliihed  truth,  that  this 
was  all  that  was  intended  by  the  flate  of  Pennfylvania, 
when  that  ftate  provided  for  a  juftification,  in  profecu- 
tions  for  libels,  from  the  truth  of  the  fad,  as  to  public 
men,  and  public  meafures.  It  is  hard  to  be  believed,  that 
it  is  intended  there,  that  a  tale  of  bribery  and  corruption 
of  a  public  oflScer,  may  be  made  the  fubjeft  of  a  gazette 
publication,  and  then  be  juftiiied,  upon  proof  of  the  fads 
charged,  when  there  fliould  be  a  profecution.  Th?s  would 
be,  to  compel  every  man  in  public  oflice,  to  engage  in  a 
lawfuit  with  every  evil  minded  printer,  or  malicious  writ- 
er, on  the  peril  of  lofmg  his  reputation,  and  compel 
him  to  try  thofe  fads,  on  an  adion  for  flander,  which 
ought  to  be  tried  only  on  impeachment. 

The  prefs  ought,  by  the  tenor  of  all  the  conftitutions, 
U)  be  free  in  the  publication  of  all  the  meafures  oi  the 


i 


f  30  J 


it'' 


if  S  f: 


government.  The  redraints  laid  upon  the  prefs  in  all  tho 
governments  on  the  continent  of  Europe,  was  the  flimu« 
lus  which  produced  an  exprefs  declaration  in  fo  many  of 
the  governments  in  North  America.  If  the  meafures 
exhibited  are  right,  the  people  will  ultimately  fupport- 
them,  if  the  meafures  are  wrong,  they  'vill  have  their  in- 
fluence in  the  then  next  eleftion. 

To  explain  this  principle  more  fully,  we  begin  with 
the  loweft  magiltrate.  Whatever,  he  in  faft  does,  or 
whatever  decifion  he  /nay  make,  he  does  it  as  a  fer- 
vant  of  the  public,  and  the  people  at  large  ought  to  be 
poiTefTed  of  it.  To  publilh  what  he  has  officia^lly  done, 
IS  one  thing,  and  to  charge  him  with  having  received  a 
bribe  to  do  either  right  or  wrong,  is  another.  The  for- 
mer mav  be  from  error  or  miftake,  but  the  latter  is  in 
itfelf  a  crime  in  him,  in  his  private  capacity,  becaufe  it 
is  received  by  him  as  a  man,  to  corrupt  him  as  an  offi- 
cer, and  thereby  to  contaminate  the  ftream  of  public  ju- 
riiprudence.  If  the  opinion  of  a  judge  is  publiflied,  and 
a  profecution  commenced  for  the  publication  as  a  libel, 
the  truth  may  be  given  in  evidence,  becaufe  we  are  all 
interefted  in  the  opinion  and  judgment  of  the  judges, 
and  though  the  opinion  or  judgment  may  be  wrong  and 
erroneous,  yet  it  is  an  opinion  in  which  the  public  have 
a  concern,  and  therefore  there  is  no  impropriety  in  the 
publication  of  it. 

Whatever  fhali  be  done  by  tlic  legiflature,  is  a  proper 
fubjeck  for  public  communication  through  the  medium 
of  the  prefs.  The  legiflature  ought  to  paSs  no  aft,  which 
will  not  bear  the  public  fcrutiny .  If  their  afts  are  wrong, 
they  ought  to  be  repealed  ;  if  they  are  unconftitutional, 
the  judges  ought  to  declare  them  to  be  fo,  and  refufe  to 
carry  them  into  execution.  Therefore,  as  the  meafures 
of  government  are  proper  for  communications  through 
the  medium  of  the  prefs,  and  the  publication  of  them,  if 
truly  and  impartially  made,  is  for  the  ule,  advantage, 
and  fafety  of  the  ftate,  the  truth  of  them  ought  to  be  a 
juftification  to  the  author  and  printer. 

The  publication  of  what  is  done  by  the  judiciary,  or 
legiflative  power,  muft  in  itfelf  be  a  juitifiable  and  prop- 


C  3'   3 


tr  thing.  But  (hould  the  printer,  at  the  fame  time  fugi 
geft  or  publifli,  that  what  was  done,  was  done  from  cor-i 
rupt  motives,  or  from  a  traitorous  defign  to  overthrow 
the  conftitution,  he  ought  to  be  puniflied,  imieis  he  can 
prove  the  fa^  of  corruption,  or  the  confpiracy  or  com- 
bination to  deftroy  the  government.  If  the  writer  or 
printer  aiTerts,  that  the  meafiire  is  unconftitutional  and 
wrong,  even  though  he  is  miftaken,  or  wilfully  errs,  he 
cannot  be  puniflied  ;  becaufe  he  has  a  right  to  have  and 
give  an  opinion,  and  he  fubmits  it  to  the  public,  who  are 
a  proper  tribunal  to  decide  upon  it ;  and  the  z&  done 
may  be  wrong  and  unconftitutional,  and  yet  not  be  the 
€fFe£fc  of  corruption  or  treafon^        t«ujw  I- >ur.' •  •  n:  " 

,  It  does  not  foll(>w  that  all  publications  on  the  meaf- 
ures  of  government,  which  are  not  true,  are  liable  to 
profecution  and  puniihment.  The  indictment  muft 
let  forth  that  the  publication  was  falj^,  and  that  it  wasr 
falfely  and  maliciotijly  made  by  the  party  charged.  The 
malice  or  evil  intention  of  him,  who  made,  the  publican 
tion  is  a  material  part  of  the  charge  ;  for  if  it  was  done 
by  involuntary  error  or  miftake,  there  is  no  criminality 
in  it ;  and  of  this  the  jury  are  tojudge^  as  they  do  of  the 
charge  of  fraud  in  other  cafes,  or  the  charge  of  malice 
on  a  fuit  for  defamation,  or  a  malicious  profecution,  or 
the  charge  of  malice  aforethought,  as  a  conilituent  part 
of  the  crime  of  murder.  But  if  the  falfe  publication 
proceed  from  malice  to  the  government,  or  its  officers^ 
or  from  a  feditious  tefnper  againft  the  powers  of  -jhe 
ftate,and  the  fad  publiihed  be  in  itfelf  falfe,  there  can  be 
no  reafon  why  the  author  and  publiiher  ihould  not  re- 
ceive adequate  and  condign  puniihment. 

The  late  a6t  of  Congrefs  was  intended  to  have  been 
paffed  on  proper  principles,  and  the  Congrefs  had  an 
undoubted  right  to  pcJs  an  ad  againft  feditious  libeh ; 
but  it  will  not  follow  from  thence,  that  the  ad  was 
drawn  on  the  rules  of  prudence,  or  executed  with  that 
dil'cretion  which  might  procure  the  confidence,  and 
merit  the  fupport  of  the  people. 

.  Some  of  the  men  who   contended  againft  it,  refted 
their  oppofuion  too  much  qu  pri^iciples  quite  incompatif 


^l■ 


If 


C  3»  3 


i) 


M 


CC 


tt 


m 


ibie  with  every  fpedes  of  a  free  govemmeot;  and 
though  the  a€l  was  finally  differed  to  expire,^  yet  thit 
chrcumilance  can  furniih  no  argument  againft  a  conftitu* 
tioaal  reftraint  on  the  prefs. 

The  ad  of  Cong,  .fs  v  is  made  in  June  1 798.  It  wsi 
to  continue  in  force  until  the  third  of  March,  1 801.  Tht 
lecond  fe^tion  enaded, ''  That  if  any  peribn  (hall  writer 
**  print,  utter  or  publiih,  or  (hall  caufe  or  procure  to  be 
^  written,  printed,  uttered  or  published,  or  ftnH  know* 
ingly  and  willingly  afTift  or  aid  in  writing,  printing, 
uttering  or  publifhing  any  faUe,  fcandalous  and  mall* 
cious  writing  or  writingti  againft  the  gov  mnient  of 
the  United  States,  cr  either  ho\^  of  Corigrefs  of  the 
^Jnited  States,  or  the  prefident  of  the  United  States, 
with  intent  to  defame  the  faid  government,  or  either 
houfe  of  the  iaid  Congrefse,  or  the  faid  prefident,  or 
**■  to  bring  either  of  them  into  contempt  or  difrepute  ;- 
■^  or  to  excite  againft  them  or  either  or  any  of  them^ 
<*  the  hatred  oi  the  good  people  of  the  United  States,- 
**  &c.  fuch  perfon  b^ng  thereof  eonvided,  (hall  be  pun-* 
**  ifhed  by  fine,  not  exceeding  two  thoufand  dollars,  or 
^  by  imprifonment,  not  exceeding  two  years." 

There  is  a  fe£tion  providing  that  it  (hall  be  law&I  for 
a  defendant,  when  under  profecution  for  writing  or  pob^ 
lifhing  any  libel,  to  give  in  evidence  in  his  defeflce  the 
truth  of  the  matter  contained  hi  the  publication  charged 
as  a  libel. 

.  By  this  aft,  the  crime  is  publifhing  zny  fal/e,/camfa>' 
hus  and  maliciout  writing.  Tins  claufe,  taken  m  its  litefat^ 
fenfe,  excludes  the  neceflity  of  a  provifion  for  giving  the- 
truth  in  evidence  in  the  defence,  becaufe  the  writing' 
muft  be  in  itfelf  yiii^,  in  order  to  make  the  publication  a 
crune  ;  and  therefore  it  would  be  natural  to  juftify  the 
fact  by  the  truth.  But  though  the  fads  alferted  might 
be  true,  yet  the  conclufions  drawn  from  them  might  not 
be  fo,  of  this  the  jury  were  made  the  judges,  under  the' 
diredion  of  the  court.  The  crime  did  not  feem  to  be 
ctnnpleted,  unlefs  the  publication  was  made  to  defame 
the  Congrefs,  or  one  branch  of  it,  or  to  d'?fanie  the  pref- 
ident, or  to  bring  him  or  the  fenate  ©r  houfe  into  con-- 


I 


[    33     !1 


teirtpt  or  dlfrq)Ute{,  or  to  excite  agairift:  him,  or  them* 
the  hatred  of  the  people.  Thus  the  adl  provided  for 
the  prefident  and  Congrefs,  leaving  all  the  other  officers, 
and  departments  of  government,  without  protedion 
from  (landers  and  libels,  unlefs  they  could  have  found 
prote^ion  in  the  common  law.  The  common  law 
ivould  have  afforded  equal  proteQion  to  the  prefident 
and  Congrefs,  as  it  did  to  the  others. 

This  ad  feemed  to  have  its  origin  in  ah  ipprehenfionj 
that  the  prefident  and  Congrefs,  or  a  major.'ty  of  the  lat^ 
ter,  were  in  danger  from  their  fellow*citize:is,  or  fome 
of  them,  and  was  received,  however  it  might  have  been 
intended,  as  a  meafure  adopted  to  maintain  a  party  in- 
fluence  long  enough  to  gain  fome  point,  contemplated 
its  of  great  political  importance. 

The  writing  and  publifhing  falfely,  arid  malicioufly, 
againfl  any  one  officer  in  the  national  government,  a  li* 
bel,  with  an  intent  to  fvlbvert  the  government  of  the 
United  States,  to  bring  it  into  hatred  or  contempt,  or  in 
that  way,  wilfully,  and  wickedly,  uttering,  and  publifh- 
ing any  falfehood,  in  faft.  With  an  intent  to  alarm  the 
people,  or  to  caufe  them  to  withdraw  their  love  and  fup- 
porl  from  the  governtnent,  ftiufl  hi  itfelf  be  a  crime  a- 
gainfl  the  government,  and  ought  to  be  punifhed.  But 
the  libel  againfl  a  prefident  or  Congrefs,  or  officer  of  the 
government,  mufl  be  in  regard  to  fomcthing  faid  to  have 
been  done  by  him,  or  them,  officially,  or  otherwife,  the 
government  cannot  be  injured  by  it,  and  it  remains  as  an 
offence  againfl  him,  or  them  in  their  private  capacities, 
and  they  are,  as  to  a  remedy,  on  the  fame  foot  of  priv- 
ilege, and  point  of  protection,  as  other  citizens.  Where 
the  private  reputation  of  an  officer  of  the  general  govern- 
ment is  injured,  or  his  property  trefpalTed  upon,  he  has 
his  remedy  as  a  private  citizen.  But  where  his  official 
condud  is  libelled,  malicioufly  and  falfely,  laith  a  view 
to  injure  the  general  government,  or  where  he  is  oppofed 
in  the  exercife  of  legal,  official  authority,  derived  from 
that  government,  th'ere  the  injury  is  to  the  government 
itfelf,  and  it  ought  to  be  confidered  as  pofTefjling  powers 
for  its  own  defence  and  fupport.  ' 


I 


fl 


!  >. 


U-    ., 


V;: 

■V     1  I 


r  34  :i 

Nothins;  could  have  been  neceflary,  nor  is  there  any* 
thing  more  neceflary  at  this  time,  than  to  pafs  an  ad^ 
that  if  any  perlbn  fhall,  by  writing,  printing,  or  in  any 
other  manner,  utter  and  publifli,  any  falfe,  malicious,' and 
fcandalous  libel  of  and  concerning  the  legiflature  of  the 
United  States,  or  of  and  concerning  the  conduft  of  any 
member  of  the  fame  in  his  legiflative  bufmefs,  or  of  and 
concerning  the  prefident,  vice  prefident,  or  any  oflicer 
or  fervant  of  the  government,  in  regard  to  his  official 
conduct,  ivitb  an  iuteni  to  fubveri,  or  iveakcn  the  govern-* 
7ncnt  he  fluill  be  puniihed  by  fine  or  imprifonment,  not 
exceeding,  Sec. 

There  is  yet  one  point  attended  with  more  difficulty.- 
The  truth  aay  be  published  in  regard  to  the  meafures 
of  the  admiiiiilration  of  Hates,  and  yet  fuch  falfe  con- 
llrutlions  may  be  given  to  them  in  the  publication^  as 
will  alarm  the  people,  raife  a  jealoufly  agiund  the  flate, 
breed  I'editlon,  and  tend  to  bring  on  an  infurretUon. 
The  quefUon  is,  as  this  is  an  evil,  how  it  can  be  prevent- 
ed by  the  governnient.  *     ■y.'.k 

Every  man  has  a  privileg(?  to  reafon  on  the  meafures  of 
government.  Some  reafon  in  one  way,  and  fome  in  an- 
other ;  one  party  may  be  right  and  the  other  may  be 
wrong  ;  but  if  he  who  happened  to  be  wrong  in  his  rea- 
rming, coultl  be  puniihed  for  his  error,  there  would  be  an 
end  of  all  free  inquiry  on  the  meafures  of  aJuiiniftration, 
Some  men  may  fornx  wrong  conclufions  with  very  hon- 
ed hearts,  while  others  form  the  fame  from  wrong  heads 
and  feditious  minds  ;  but  there  can>  be  no  way,  in  which 
a  juft,  and  exa£t  fcrutiny  can  be  made,  and  therefore, 
there  can  be  no  punifliment  in  fuch  cafes,  without  a  dan- 
gerous infringment  on  the  right  of  private  judgment,  in 
public  concerns. 

The  evils  attending  thefe  errors,  whether  involuntary 
or  corrupt,  are  not  fo  dangerous  as  they  may  be  at  firfl 
conceived  to  be.  The  writer,  or  the  publiflier  lays  the 
fad  of  the  meafure,  fairly  and  fully  before  the  public, 
and  then  ofTcrs  his  opinion,  as  to  its  eiteds  and  conle- 
f[uenccs.  If  he  believes  the  ad,  declfion  or  meafure,  to 
be  unconditutional,  he  lays  fo,  and  exhibits  his  reafous  :: 


[     35     ] 

the  body  of  the  people  have  the  conftltutlon  In  their 
hands,  they  hear  the  renlbns  of  others  on  the  fiibject  \ 
and  they  can  ultimately  form  an  opinion  for  themreives, 
and  they  generally  decide  with  ability  and  ]5ropricty  ; 
becaufe  they  have  no  corrupt  motive,  no  finillcr  end  in 
view,  nor  any  wrong  bias  from  interell  on  their  minds. 
If  he  fays  that  the  meafure,  though  conftitutional,  has  a 
tendency  to  injure  the  public  weal,  yet  if  he  alligns  no 
reafons  for  his  opinion,  the  public  will  not  regard  him  ; 
and  if  he  does,  others  will  canvafs  his  reafons,  and  ihci 
people  will  finally  be  able  to  form  a  correal  and  proper- 
judgment  on  the  cafe. 

It  will  fometimes  happen,  that  mflammatory  pieces, 
with  little  or  no  foundation,  will  have  a  warm  efted  on 
the  public  mind.  Eleftions  are  fometimes  procured  and 
fometimes  prevented  in  this  way  ;  and  good  men  are 
frequently  grieved  at  the  efFefts  of  a  mifunderflanding  in 
the  public  opinion  ;  but  fuch  is  our  (late  of  imperfec- 
tion here,  that  we  can  have  no  good,  which  is  not  tinc- 
tured with  evil.  This  is  necelFarily  incidental  to  the 
freedom  of  the  prefs,  as  eftabliflied  and  contemplated  by 
all  the  conftitutions  in  our  nation  ;  and  being  an  evil  iu 
itfelf  of  Icfs  magnitude,  than  what  would  refult  from  a 
reftraint  on  the  freedom  of  the  prefs  in  fuqh  qafcs,  it 
muft  be  endured. 

There  can  be  no  ftandard,  befides  that  of  the  public  o- 
pinion,  ellablifhed  to  decide  on  the  reafonings  and  con- 
cliifions,  which  nien  and  parties  will  draw,  in  adverfe  or 
diverging  lines  from  the  fame  premifes.  Therefore  to 
punifh  a  man  for  rcafoning  wrong,  would  be  to  deny 
him  the  privilege  of  reafoning  at  all  :  and  to  deprive 
him  of  this  privilege,  in  a  matter,  wherein  he  has  an  in- 
tereft  in  common  with  the  relt  of  his  fellow  ciiizens, 
would  be  to  deprive  him  of  one  of  the  molt  valuable 
rights  fecured  by  the  form  of  al.l  our  governments.  It 
would  be  like  the  cliiim  of  that  authority  whigh  burned 
one  philofopher  for  fuggefting  principles,  the  belief  of 
which  ultimately  crowned  another  with  laurels  :  or  that 
.  which  effeded  the  execution  of  another  philofopher,  for 
fiiggciwing,  that  the  earth  was  not  a.phnc  but  a  ^Iol;j.  _] 


»n 


,  f 


1/      ^?' 


n^' 


n 


C    3<5     ] 

« 

Whc^rever  one  man,  or  one  body  of  m^n  c4n  txtdt 
and  maintain  a  coercive  tribunal  in  favor  of  their  own  o* 
pinions,  and  in  oppofition  to  that  of  thofe  Who  differ  from 
them,  there  is  an  end  of  all  free  inquiry  :  and  the  right  of 
private  judgment  no  longer  exids.  The  world  has  feen, 
does  now  fee,  and  will  forever  fee,  melancholy  inilances 
of  this  truth,  The  wife  man  fays,  that  which  hath  been 
will  be  again  ;  and  there  is  nothing  new  under  the  fun. 
A  furvey  of  the  whole  Muflulman  empire  rifes  tip  in  tef» 
limony  of  this  fadt.  Wherever  the  Roman  catholic  re-^ 
ligion  has  had  a  full  perception  of  its  confequences,  the 
cfTecl  has  been  the  fame  as  that  of  Mahomet  in  Turkey. 
Thus  we  fee  Italy,  the  garden  of  Europe,  has  become 
the  imbecile  fport  of  neighboring  powers,  from  a  >^ant 
of  mental  energy  ;  and  by  reafon  of  that  torpid  weak- 
nefs  of  nerves,  which  never  fails  to  be  the  confequcnce 
of  indolence  of  mind.  We  behold  in  Spain,  the  afs 
crouching  between  two  burdens  ;  the  churcli  and  the 
throne.  The  former  has  a  fervile  dependence  .  |>on  the 
latter  ;  and  in  due  form  of  law,  lays  the  people,  bound 
hand  and  foot,  on  the  altar  of  fuperftitjon,  that  the  fac- 
rifice  may  be  divided  between  the  church  and  the  Hate. 
7'his  fame  kind  of  tyfariny  was  maintained,  ina  ^'»:at  de^ 
•gree,  under  the  late  French  monarchy  ;  but  as  i^  \cul- 
cated  a  fuperflitious  regard  to  the  monarch,  as  to  the 
Lord^s  annintedjit  was  neceflary  to  overthrow  the  church, 
in  order  to  overturn  the  throne.  .:  r^     ,  -v-m  < 

The  holy  reli^^jion,  which  was  by  thefe  pbwers  vlldly 
corrupted,  and  profanely  debafed,  contains  no  authority 
for  fuch  tyranny.  1  he  whole  tenor  and  fpirit,  as  well  as 
all  the  precepts  and  examples  of  it,  are  hi  favor  of  the 
rights  of  confcience.  We  are  there  taught,  to  call  no 
man  mafter  in  matters  of  confcience,  for  one  is  our 
mafler  even  our  Father  who  is  in  heaven.  The  whole 
hofl  of  martyrs,  are  now  bearing  teftime  ny  in  favor  of 
this  right.  The  flates  of  America  have  done  themfelves 
infinite  honor  in  recognizing  this  facred  principle,  gi^-en 
to  the  human  race  on  their  creation,  and  more  fully  ex- 
plained in  that  divine  fyftera  which  hath  brought  lii'c 
«unj  immortality  to  light.  -u"!  r-:, 


Vt 


\l 


vildly 

ithoTity 

well  as 

of  the 

call  no 

is  our 

whole 

"avor  of 

nifelves 

given 

lly  ex- 

Iht  lU'c 


'9 


C    57    ] 

.  There  never  has  been  an  inftance,  of  tlie  freedom 
of  en<iuiry  in  matters  of  religion,  being  reftraiixed, 
where  the  civil  liberty  of  the  people  furvived  it.  Nor 
has  there  ever  been  an  indance,  of  the  people  being 
denied  the  right  of  enquiry  on  the  principles,  and, 
adminidration,  of  civil  government,  where  the  rights  of 
confcience  have  bo  a  preferved.  Neither  of  thefe  can 
Aibfilt  without  the  other.  I  do  not  mean,  that,  becaufe 
a  man  has  a  right  to  think  for  himfelf,  he  has  a, 
tight  to  vex  and  dillurb  others  in  the  exercife  of  the 
lame  privilege.  The  whole  of  my  argument  tends  to 
prove  the  reverfe.  The  idea  of  each  man's  having  a 
tight  to  think  for  himfelf,  fuggefts  in  the  ftrongeft  man- 
ner, that  in  this  refped,  all  are  equal,  and  that  it  will  be 
unjuft  in  one,  to  fubvert  the  right  of  another. 

The  laws  made  againft  blafphemy,  and  profanity, 
when  fully  underftood,  and  properly,  and  cautioully  ex» 
ecuted,  are  quite  compatible  with  theie  ideas.  The  laws 
againft  blafphemy,  at  leall  any  one  which  I  have  feen,  al- 
low every  one  to  have  his  own  opinion  in  regard  to  the 
incomprehenfible  author  and  creator  of  the  univerfe.  If 
any  one  has  a  belief  that  there  is  a  Being,  who  has  created 
all  things,  and  on  whom  he  himfelf  is  dependant  for  his 
exiftence,  he  cannot  think  of  him  but  with  awe  and 
reverence.  If  all  the  community  are  in  this  belief,  they 
can  htive  no  right  to  grieve  and  vex  each  other,  by  con- 
tumelious reproaches  of  him.  If  the  greater  part  of  the 
Community  have  this  belicl,  nd  the  reproach  and  ridicule 
of  it,  are  not  elTential  to  the  happiiicfs.  and  comfort  of  the 
•minority,  they  ought  to  be  reftrained  from  riie  exercife 
of  fuch  contumely  anii  reproach,  as  will  afHi^,  or  dif. 
•turb  the  majority.  '1  iiis  can  be  no  injury  to  them,  be- 
caufe they  are  left  to  have,  and  enjoy  their  ovvq  opinions 
in  peace  and  in  quietnefs ;  they  are  left  to  the  exercife 
of  the  right  of  defending  them  in  argument,  by  neceflary 
means,  only  avoiding  that  mode  of  converfation,  which 
is  unneceflary  to  them,  injurious  to  others,  and  vexa- 
tious to  men  of  decency  and  good  manners,  who  are  not 
careful  about  any  religion. 

The  laws  which  are  made  to  prevent  blafphemy,  againft 


■    » 


m 


1 33 1 

what  chriftians  denominate  revealed  religion,  are  on  tht 
fame  principles.  The  contumelioujly  reproaching  of  God, 
Jefus  Chrifl,  or  the  Trinity,  or  the  books  of  the  old  op 
new  teftament,  is  a  crime.  But  the  opinion  which  any 
one  may  have,  on  tliefe  fubjefts,  or  any  arguments  he 
may  offer  in  fupport  of  his  opinion  can  be  no  crime  a- 
gaihfl  the  laws.  Yet  there  can  be  no  reafon,  why  one 
man  fhall  be  allowed  to  treat  the  opinion  of  a  majority 
of  a  community,  on  thofe  original  ideas  of  religion,  with 
contempt  and  ridicule.  It  can  by  no  means  be  proof  of 
the  truth  of  his  own  opinion,  of  the  gravity  of  his  ow" 
mind,  or  the  ferioufnefs  of  his  own  inquiries  to  treat  the 
religious  opinions  of  his  neighbors  with  contumely  and 
reproach.  '  ■■        ,.i' ...i.'.' "*  .  :...  ^'.i!-;  '-.;:."  m  j;  J).>*'^c 

A  fociety  of  men  may  believe  with  well  grounded  rea- 
fon, that  the  apprehenfion  of  punifhment  in  another  ftate 
of  exiftence  after  this  is  terminated,  will  lay  a  powerful 
reftraint  upon  the  actions  of  men  here,  that  it  will  have 
a  tendency  *to  prevent  fecret  crimes,  or  the  crimes  open- 
ly done,  under  the  hope  of  proteftion  from  fecrecy,  and 
that  it  may  have  a  tendency  to  eftablifh  truth,  by  the 
prevention  of  falfehood  and  perjury.  This  idea  is  as 
old  as  the  world  itfelf,  and  all  nations  have  adopted  it. 
The  United  States  have  univerfally  adopted  the  fame  o- 
pinion,  and  it  has  been  by  the  people  here,  counted  up- 
on as  a  main  pillar  of  their  teveral  governments.  There 
may  be  phibfophers  in  the  prefcnt  day,  who  ridicule  thfe 
idea,  and  afiert  that  death  is  an  eternal  fleep.  It  is  weli 
for  the  world,  in  my  opinion,  that  there  are  fuch  men  ; 
for  when  the  levity  of  their  characters,  and  the  atrocity 
of  their  anions  are  feen,  we  are  convin<:ed  that  the  world 
would  be  a  mod  miferablc  place  of  exiftence,  if  all  men 
were  to  adopt  their  fentiments.  Though  thefe  men,  like 
other  evils,  may  be  ufeful  in  attaching  mankind  more 
facredly  to  what  is  right  and  good  in  itfelf,  yet  Hke  oth- 
er evils  their  opinion  may,  and  ought  to  be  reftraincd 
within  fuch  bounds  as  may  not  injure,  or  overthrow  the 
focial  compaft.  If  they  pleafe  themfclves  with  the  idea 
of  a  termination  of  their  exiftence  in  the  article  of  death, 
yet  if  thry  commit  no  crime  againft  the  laws  of  civil  fu- 


,s  ■, 


I  ai 


C    39     ] 

dety,  no  body  can  punifli  them.  If  their  mode  of  belief 
takes  off  their  reftraint  on  thf^ir  atlions,  fo  far  as  to  in- 
volve them  in  guilt,  they  mud  fulFcr  like  other  men* 
The  promulgation  of  their  opinion  can  be  of  no  confc- 
quence  to  them,  becaufe  if  the  end  of  this  life  is  the  end 
of  our  exiftence,  there  can  be  no  neceflity  for  our  urg- 
ing each  other  to  receive  opinions  in  which  we  can  have 
no  poflible  concern,  and  confequently,  in  which,  as  men, 
on  their  own  hypothefis  we,  or  they,  can  have  no  intcr- 
eft.  The  conclufion  is  therefore  reafonable,  that  when 
the  majority  (hall  conceive  a  reftraint  upon  contumelious 
treatment  of  a  generally  received  religion  to  be  necefla- 
ry,  which  reftraint  can  do  no  injury  to  one  individual, 
but  may  advance  the  intereft  and  fecurity,  and  promote 
the  happinefs  of  the  whole,  his  own  included,  they  have 
a  right  to  lay  it.  -f-^-ffi,      .     t  p-^    -^r^      -.  .   .  ■. 

The  conclufion  by  me  made  from  thefe  arguments,  is 
fnnply  this,  that  in  all  matters  of  religion,  and  civil  au- 
thority we  have  the  freedom  of  the  prefs  facredly  affur- 
ed  to  us  by  the  conftitutions  of  governments  which  we 
have  formed  ;  or,  in  other  words,  that  while  we  have 
yielded  to  the  community,  the  power  of  reftraining  us, 
10  far,  as  is  for  the  promotion  of  our  own  fecurity  and 
happinefs,  with  that  of  all  enrolled  in  the  fame  focial 
compadt,  we  have  referved  the  privilege  of  exercifmg 
fuch  rights,  as  will  have  a  tendency  to  preferve  from 
corruption,  that  fyftcm,  by  which  that  power  is  ceded, 
and  by  which  thefe  rights  arc  fecured. 

Produ«^ions  addreffed  to  the  underftanding  of  man- 
kind, on  the  fubjeft  of  civil  government  have  never  been 
deemed  to  be  feditious  ;  but  eflays  made  on  falfe  fads 
to  influence  the  minds  of  the  people,  to  create  unnecef- 
fary  jealoufies,  and  to  dilaffcdt  the  people  to  the  govern- 
ment, always  have  been,  and  no  doubt  always  will  be, 
held  as  highly  criminal. 

Reafoning  with  decency  on  the  being  and  attributes 
c>i  God,  on  the  divinity  of  J el'us  Clhriit,  or  the  etiicacy 
of  the  Holy  Ghoft,  or  the  evidence  of  the  bible,  have 
never  been  confidered  as  ciiminul,,  but  ccntun-.clioufiy 
reproaching  the  Deity,  reviling  the  fcripturcs,  kc.  have 


V 


t     40     ] 


it 

I 


■  I 


u 


1/    ^  r 


been,  and  no  doubt  will  always  be  confidered  as  cnhil-* 
nal  in  thefe  governments  ;  becaufe  fuch  conduct  tends 
to  diflblve  the  bands  of  civil  fociety,  and  of  courfe,  to 
fl4)vert  that  feeurity  to  the  people,  which  their  govern- 
ments were  formed  to  eftablifli. 

Ft  may,  nevcrthdefs  happen,  under  the  beft  form  of 
government,  that  the  means  provided  in  the  con- 
ftitution  for  its  own  fupport,  may  be  pi-oftitutedj 
either  in  a£ls  of  legiflation,  o  in  judicial  proce- 
dures, to  bafe  and  Unworthy  purp^  fes.  There  can  be 
fio  neceflity  for  a  civil  government,  when  the  imperfec- 
tion of  human  nature  is  done  away  ;  and  while  men 
govern  men,  there  will  of  courfe,  be  imperfedions  and 
errors  in  the  adminiftration  of  government*  When 
parties  tun  high,  the  ruling  majority,  ever  right  in  theif 
own  opinion,  can  never  conceive  that  the  rod  in  thei# 
hand  is  too  heavy  for  the  flioulders  of  thofe  who  oppofe 
them.  They  wiU  not  refleft,  that  thdr  feverity  has  a 
dire€l  tendracy  to  change  the  public  opinion,  on  which 
they  ftand  ;  and  that  thofe,  whom  they  now  fcourge, 
tnay  have  an  opportunity  to  lay  the  lafti  on  the'r  fhould- 
crs  in  turn. 

The  late  2c€t  of  Congrefs  a^ainft  feditioft  was  the  off* 
fpring  of  a  warm  party  ffwirit.  The  execution  of  it  feem- 
ed  to  be  tinctured  with  the  fame  baneful  drug.  Whil« 
fome  were  punifhed  for  abuTmg  the  prefident,  there  was 
no  provifion  againft  abufing  the  vice  prefident ;  but  this 
was  done  in  the  moft  licentious  manner.  The  way  to 
make  intereft,  and  to  gain  an  influence  with  fome  of  the 
men  who  promoted  the  fedition  law,  was  to  violate  its 
principles,  by  arbufing  fome  of  the  principal  officers  of  the 
government.  While  fome  were  puniflied  for  abufing 
the  fcnate,  as  a  body,  others  were  attempting  to  make 
their  way  into  office,  by  viUifying,  ridiculing,  and  libel- 
ling the  members  of  that  body,  who  were  in  the  minor- 

The  n£t,  was  in  itfelf,  pointed,  and  particular,  which 
no  doubt  produced  thofe  effefts  in  its  execution,  that 
put  an  end  to  its  exirtence.  No  aft  was  neceflary  for 
any  other  purjx)fc  than  that  of  providinc  the  mode  and 


t     41     ] 


minor- 

which 
n,  that 
ary  for 


<^ukntum  of  puni{hment.  One  of  the  judges  obferved^ 
in  oner  of  the  trials  for  a  libel,  that  there  was  no  criminal 
<iommon  law  in  the  United  States.  He  could  not  mean 
by  this,  that  a  nation  had  formed  a  government,  without 
(he  powers  of  protecting  itfelf.  If  he  intended,  that  the 
government  had  powers  to  proteft  itfelf,  but  that  thefei 
powers  muft  be  firft  defined  by  the  legiflature,  before  the 
judiciary  authority  could  condern  themfelves  with  them, 
he  involves  hinifelf  ill  this  difficulty,  that  there  is  no  where j 
in  the  catalogue  of  powers  given  toCongrefs,any  one  in  re- 
gard to  fedltion.  If  he  fays,  that  the  reftraint  of  fedition  is 
hcceflary  to  the  prefervation  of  the  government,  and  that 
therefore  the  pbwer  is  given  by  implication,  the  anfwer 
is,  that  whatever  has  a  tendency  to  overthrow  the  con- 
ftitution  and  civil  authority,  is  a  crime  agairift  the  gov- 
ernment, and  may  be  puniined  by  a  reafonable  reftraint  j 
and  that  fines,  imprifonment,  and  fureties  for  good  be- 
hivior  are  reafonable  reftraints,  and  may  be  adminif- 
tered  without  any  act  of  Congrcfs  for  the  purpofe;  If 
thefe  are  not  adequate,  the  legiflatilre  of  the  nation  may 
iificreafe  the  puniftiment. 

*•  There  never  was  a  necefHty  for  Congrefs  to  do  any 
ihirig  rtiore  than  to  provide  for  the  punifhment  of  fedi- 
tion, without  an  attempt  to  define  it  by  ftatiite..  This 
crime,  in  thi^  refpeft,  is  like  treafon,  murder  and  other 
piFences,  which  are  defined  by  precedents,  and  by  the 
nature  of  things,  and  can  never  fubmit  to  a  legiflative 
defcriptioni'f  Congrefs  ought  therefore  to  have  fimply 
provided  a  punifhment  for  fedition,  and  feditious  libels, 
without  faying  .-rtore  on  the  fubjeft.  If  they  had  thought 
it  neceffary  to  make  provifion,  as  was  done  in  that 
aft,  that  in  all  cafes  for  a  libel  againft  the  goverrtrtient, 
or  any  officer  of  it,  for  mifcoriduft  in  his  official  capacity, 
With  an  intent  to  injure  or  to  oppofe  the  government,  the 
party  charged  fhould  be  ailciwed  to  produce  evidence  of 
the  fafts  contained  in  the  libel,  in  his  juflification,  they 
might  have  done  it.  But  this  ought  to  be  reftrained  to 
luch  fafts  only,  as  the  officers  of  government  fhould  coiu^ 
mit  in  their  public  capacity,  and  not  to  fuch  matters  as 
would  be  difgraceful,  and  iiumoral  in  them,  as  private 

F 


<i' ., 


[     42     n 

«icn,  To  allow  every  one  to  produce  evidence  tfiar  at 
judge  or  magiftrate  had  given  a  wrong  judgment,  and 
to  ufe  thaty  as  proof  that  he  had  received  a  bribe,  would 
be  inadminible.  To  prove  that  a  prefident  had  made  a> 
v-Tong  appointment,  or  that  a  member  of  the  legiilature 
had  givcQ  a  wrong  vote,  and  to  c£'er  this  as  evidence  o£ 
corruption,  would  be  unreafonable  and  unjud. 

The  conduQ:  and  tenor  of  ejcecutive  and  judicial  ap- 
pointments, ought  to  be  the  fubject  of  fcrutiny.  Where 
the  appointments  are  befliowed  upon  perfons  of  a  partic- 
ular  way  of  thinking,  or  on  the  leaders  of  a  party,  we 
nave  a  ju(l  right  to  difcover  from  this,  the  drift  of  the 
adminidration,  and  as  clear  a  privilege  openly  to  pro* 
mulge  the  truthy  as  to  the  fads  of  appointments,  and  to 
give  out  our  Opinion  of  the  tendency  of  the  meafuresr 
Where  there  is  a  diviHon  of  federalifh  and  democrats,  as 
the  parties  are  now  called,  and  the  prelkient,  or  the  gov- 
ernor will  make  ah  attachment  to  the  one  party  or  the 
¥)ther  a>  qualification  to  office,  and  a  condition  for  a 
pl^ce,  we  have  a  right  ta  charge  him  with  being  of  that 
party^  Nay,  further,  \\»e  have  a  right  to  condemn  the 
praftice  as  being  a  fpecies  of  cornlption,^  deftrudive  ta 
the  rights  of  private  judgment  on  public  concerns ;  and 
as  a  mode,  which  cannot  fail  to  create  fadions,  and  to 
maintain  dangerous  and  bitter  parties,  a«  long  as  the 
government  mall  exifl. 

The  patronage  of  the  prefident,  as  has  Been  alTerted 
by  fome  politicians,  mult  be  maintained  by  fome  means 
or  other,  and  there  are  no  other  than  thofe  of  filling  offi- 
ces and  places  ^vith  men  who  are  devoted  to  his  opinions. 

When  this  idea  is  properly  examined,  it  will  appear 
to  be  quite  unnaturaltoour  fyflems  of  civil  government, 
and  derogatory  to  all  the  principles,  which  ha\  been 
advanced,^  in  order  to  maintain  our  late  glorious  revolu* 
tion.  h  will  appear  to  be  a  legitimate  offspring  of  that 
tyranny  which  has  fo  often  deluged  the  world  m  blood.- 
It  is  introduced  at  no  other  door,  than  that,  which  opena 
to  receive  the  dangerous  charge  againfl  the  people  of  A- 
merica,  that  they  are  incapable  of  preferving  and  enjoy* 
ing  a  free  goveniinent. 


ti    J 


/    < 


open* 
ofA- 


t    43    J 

'The  prefident  can  have  no  intereft  feparate  from  that 
of  the  people.  The  idea  of  bribing,  by  appointments, 
a  part  of  the  people,  to  defend  the  interefts  of  the  whole, 
IS  abfurd  and  unnatural.  An  honcfl  man  and  a  patriot^ 
will  premote  and  defend  the  intereft  of  his  country, 
whether  he  is  in  office  or  not ;  .while  a  man  of  no  prin- 
ciple, he  who  afts  or  engages  for  the  fake  of  an  of- 
fice, will  betray  his  country,  and  fubvert  the  liberties  of 
the  people,  where  it  (hall  be  for  his  finifter  emolument 
to  do  it.  The  conftitution  is  to  be  maintained,  not  be- 
•caufe  it  is  the  fource  of  honor  and  emolument,  but  be- 
caufe  it  is  eftablifhed  by  the  nation  for  the  public  hap- 
pinefs  and  fecurity. 

There  can  be  no  incompatibility  in  fheinterefts  of  the 
'ftate  governments,  and  that  of  the  United  States.  Thic 
latter,  as  now  eftablifhed,  fmks  of  courfe  when  the  ftate 
gove'  aments  (hall  ceafe  to  exift.  They  will  become  the 
.  defcroying  angel  of  each  other,  for  as  foon  as  that  i.* 
overturned,  the  preferving  balance  will  be  done  away, 
and  they  rauft  firtk  to  ruin  by  their  wars  and  depreda- 
tions on  each  other. '*' J'*   f'^'W  ,«  ;  .r  i 

How  far  the  idea  of  creating  an  intereft,  and  main- 
taining an  influence  by  a  prefH.entidl  patronage,  in  the 
late  adminiftration,  was  adopted,  I  do  not  undertake  to 
determine.  There  are  charges  openly  made  on  this 
/core  by  men  in  the  intereft  of  the  prefent  adminiftra- 
-tion,  and  the  fame  is  as  warmly  reciprocated.  How  far 
cither  charge  is  true,  the  public  muft  judge  for  them- 
ielves. 

*  It  has  been  faid  that  the  prefident. cannot  adminifter 
the  government  on  his  own  principles  and  plans,  unlefs 
his  agents  and  fervants  fball  coincide  with  him  in  opin- 
ions upon  civil  and  political  fubje^s.  This  ^fTertion,  in 
the  latitude  it  is  intended,  cannot  be  true,  or  be  confift- 
«nt  with  political  propuety.  Could  this  aflertion  be 
maintained,  every  prefident  ought  to  exhibit  his  political 
creed,  not  that  the  people  might  know  his  fentiments, 
and  correft  them,  as-by  the  ftandard  of  public  opinion, 
-but  that  they  fhould  implicitly  conform  themfelves  to  it, 
as  to  the  fixed,  unerring  and  unalterable  ftandard  of  po- 


I 


<      I 


■V  . 


.'■-t   ! 


I    44     ] 

Ikical  truth.  We  fiiould  all  be  releafed  from  tht  labor 
of  forming  opinions  for  ourfelves,  and  have  only  to  em- 
brace the  creed  of  the  chief  magiftrate.  Thofe  who  ex- 
pert to  live  by  the  preHdent's  patronage,  finding  the  of- 
fices all  full,  will  begin  to  intrigue  for  a  new  prefident, 
whofe  political  principles  ^re  in  dired:  oppoiition  to  the 
one  in  office.  The  men  who  view  themfelves  as  candi:; 
dates,  will  of  courfe  open  a  controverfy  with  him,  and 
either  explicitly,  or  implicitly,  form  contrails  to  pro- 
mote the  leaders  of  their  party.  Thus  the  conditution 
will  be  forfaken,  and  the  plans  and  machinations  of  par- 
ties form  the  plan  of  adminillration. 

Mr.  Adams  in  his  book,  intitled  the  Defence  of  the 
American  conliitutjons,  obferves  very  truly,  that  a 
majority  may  be  a  fadion-  Whatever  number  of  men 
fliall  affociate  together,  for  any  other  purpofe  than  that 
of  maintaining  the  government  on  the  principles,  ^nd  by 
the  forn^s  of  the  conllitution,  is  a  fadtion,  What  necef- 
fity  can  there  he  for  aflbciations,  either  by  exprefs  com-. 
paft,  or  by  implicit  intrigue  ?  We  are  all  united  in  a 
form  of  government,  which  interefts  all  alike,  and 
which  mull  he  fi^pported  by  the  will  of  the  whole, 
Does  any  one  fay,  that  parties,  intrigues,  armies  and  a 
feparate  ordgr  of  men^  are  neceflary,  becaufe  the  peo- 
ple have  not  viitue  enough  to  govern  themfelves,  in  an 
eledive  republic  ?  He  who  fays  this,  is  an  antifederalijiy 
artd  commits  trmfon  agairji  the  conjiitution,  ? 

The  agents  and  fervants  of  the  government,  and  the 
fecretaries  of  the  departments,  foreign  minifters  andcon-^ 
fuls,  the  executive  and  judicial  officers,  and  the  men  em- 
ployed in  the  bufinefs  of  legiflr  tion  ;  the  fecretary  of 
ftate,  the  fecretaries  of  war  and  of  the  n«ivy,  arp  proper- 
ly confidential  friends  c|  the  prefident  ;  and  will  of 
courfe,  be  men  whofe  opinions  are  coincident  with  thofe 
of  him  who  appoints  them,  The  forpign  minifters  and 
^onfuls  are  men  whq  are  undei  the  prefident's  confiden- 
tial orders,  and  ought  to  be  v  ith  him  in  political  fenti- 
ments.  The  legiflators  are  fo  fi  r  from  being  in  the  rank 
of  agents  of  the  chief  magiftrate,  that  he  is  by  the  form, 
of  the  conftitution  cojifidered  as  their  agent,  to  carry  in, 


r  45  ] 


t9  cffe£k  the  aSs  they  pifs»  The  judges  and  judicial  ofl 
i;cers,  the  executive  Oificers,  including  in  this  defcrip*  ! 
tion  the  ofHcei:^  of  the  revenue,  are  not  his  agents  an4 
fervants,  but  are  the  agents  and  fervants  of  the  nation 
according  to  the  eftabliflicd  form  of  the  government 
and  the  laws  of  the  land.  This  diftinftion  is  of  great  - 
importance  under  the  form  of  a  free  government ;  be- 
caufe'the  immediate,  confidential  friends  of  the  prefident 
are  to  be  guided  by  his  pleafure,  as  diftated  by  him  a- 
lone,  while  the  judicial  and  executive  officers  are  under 
the  diredion  of  the  laws.  Thefe  are  perfonally  amena- 
ble for  their  own  condud,  and  refponfible  for  every  de- 
viation from  the  legal  path  of  their  duty  :  nay,  further, 
the  exprefs  orders  of  the  prefident  himfelf,  is  no  juftifi- 
cation  fqr  their  negled  of  duty,  or  error  in  proceeding. 

Since  the  laws  alone  are  to  govern  the  condud  of 
thofe  officers,  of  what  moment  can  it  be  to  the  people, 
whether  their  opinions  coincide  with  the  prefident,  ei- 
tjier  in  religion  or  politics.  To.  the  prefident  it  may 
be  of  confequencc  in  an  enfuing  eledion,  becaufe 
their  being  in  office  may  give  them  an  influence  in 
his  fupport.  It  is  of  confequence  to  the  people  that 
the  officers  of  their  government  fliould  be  well  inform- 
ed, and  upright  men.  If  they  are  fo,  and  the  prefident 
is  a  good  man,  and  a  fuitable  perfon  for  his  elevated 
ftation,  they  and  he  cannot  differ  in  fentiment  ;  but  if 
he  thinks,  and  reafons  erroneoufly,  it  is  of  confequence 
that  they  Ihould  not  unite  with  him.  It  is  therefore, 
a  falutary,  and  jufl;  conclufion,  that  no  man  ought  to 
be  denied  an  office  in  the  judicial,  or  executive  line^ 
qr  be  removed  from  fuch  office,  becaufe  his  opinions 
and  fentiments,  are  not  affimilated  to  that  of  the  chief 
magiftrate.  ,i, .  lOt^^^^fej  > 

Men  who  are  oppofed  in  opinion  to  the  government, 
as  it  is  eftabliflied,  cannot  be  fafely  trufted  with  its  ad- 
miniftration.  Thofe  who  have  no  confidence  in  an  c- 
ledive  republic,  but  believe  an  hereditary  monarchy, 
and  a  line  of  defcending  nobility  as  neceffary,  can  never 
adminifter  an  eledive  republic  with  firmnefs  and  patience. 
Thofe  men  who  are  oppofed  to  all  fettled  rules,  and  a- 


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vafe  to  all  the  masdms,  which  experience  an^  ^dom 
h«ve  eAablifhed,  can  never  adminifter  any  government 
-well.  Yet  this  is  a  cafe  very  v^lde  from  thofe  opinions, 
which  divide  the  ;body  of  the  people  in  our  country '. 
the  extremes  on  each  fide  ought  to  be  rejeded,  but 
vrhether  a  man  is  in  fayo"-  of  Adams,  Jefferfon)  Burr  or 
Pinckney,  ought  by  no  means  to  be  confidered  as  a  quaU 
location,  or  as  a  difqualLBcation  to  ofHce. 

Should  the  idea  obtain,  that  men  are  to  be  appointed 
to,  or  fecloded  from  office,  on  account  of  political  opin- 
ions upon  the  adminiftration  of  the  government,  there 
would  be  an  eternal  warfare  between  the  puts  and  ins^ 
Contentions  would  be  fharpened,  and  the  hopes  and 
fears  of  men  in  office^  or  thofe  who  want  offices,  would 
have  the  fiill  effedt  of  bribery  and  corruption.  The 
number  who  are  in  office,  will  always  be  a  minority,  and 
thofe  who  are  out,  and  under  difappointment,  mufl  ul- 
timately prevail  :  thefe  will  have  their  day  of  triumph, 
and  an  opportunity  to  Ihare  in  the  coveted  emoluments 
of  the  treafury. 

It  may  be  fuggefted  here,  that  in  a  ftruggle  of  this 
kind,  the  reJpeftable  and  honeft  part  of  the  community, 
will  take  no  part.  The  men  who  are  partizans,  hav^ 
3i  claim  to  the  offices,  as  they  may  have  gained  a  victory, 
and  the  only  men  who  could  be  fafely  trufted  with  the 
government,  are  placed  at  a  diflance,  while  thefe  cham- 
pions, for  their  own  emolument,  aflume  the  gown  of  the 
patriot,  and  urge  the  people  to  civil  difcord  ;  and  per? 
haps  to  bloody  difTenficms :  the  men  who  dare  to  con- 
demn, in  a  Wafhington,  that  which  they  would  not  juf- 
tify  in  an  Adams  ;  who  will  condcnm  in  a  Jefferfon*g 
adminiftratioii,  the  meafures  which  they  cenfiired  in  that 
©r  his  predecefTor,  and  applaud  in  the  one,  what  they 
approved  in  the  other.  Thefe  men  are  the  true  feder- 
alifls,  independent  of  all  parties  ;  and  though  neither 
are  friendly  to  them,  yet  they  will  have  a  tribute  of  re- 
fpeft,  from  the  community,  of  more  value,  than  the  eu- 
logies of  defigning  partizans  ;  and  will  enjoy  more  fub- 
ftantial  fatisfadion,  than  can  be  derived  from  offices  and. 
Itipends. 


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I   47    3 

It  IS  afTenrted  with  confidence,  that  there  are  men  in  the 
United  States,  who  have  no  faith  or  confidence  in  th^ 
prefent  federal  conftitution  ;  and  from  a  variety  of  pubn 
iications  in  feveral  parts  of  the  union,  there  is  fome  rea* 
fon  to  believe  the  faft.  There  feems  in  fome  produce 
tions  to  be  a  defign  to  difaffeO.  ...o  foikuern  with  the 
northern  dates.  Others  feem  to  be  endeavoring  to  di* 
vide  the  New  England  ftates  from  the  others.  What- 
ever pretenfions  fuch  men  may  make,  they  are  by  no 
xaeaitii  federalijis.  The  general  conftitution  is  a  league, 
or  covenant,  between  all  the  ftates,  and  he,  whoever  1^^ 
is,  th-i*^^  fhall  attempt  in  any  manner  to  difioivc  it,  is  an 
antifeueraliji. 

The  people  of  the  United  States  are  fecure  in  their 
perfons  and  property.  And  therefore  thefe  men  who  de- 
light in  theoretic,  fpeculative  politics,  ought  to  have  n:\odf 
efty  enougli  to  be  quiet,  until  thofe,  who  have  a  confir 
(dence  in  our  prefent  government,  ihall  have  given  it  a 
fair  trial.  • 

By  the  conftitution  of  the  United  States,  Congrpfr 
have  a  right  to  exercife,  over  a  territory  ten  miles  fquare^ 
where  the  feat  of  government  is,  exclufive  legiflative  ju* 
tifdidion.  What  may  be  done  under  this  claufe  for  the 
punifliing  of  libels,  made  or  publifhed  within  that  ter ri" 
tory,  cannot  now  be  fatisfaf^orily  afcertained :  but  vva 
muft  take  up  the  fubied:  as  the  law  now  is  in  the  gener- 
al government,  and  m  the  ftate  governments. 

The  remedies  for  libek  are  on  a  civil  procefs,  or  on 
indiftment.  The  former  is  by  an  action  upon  the  cafe 
for  damages.  In  this  adiiion,  the  plaintiff*  fues  in  hi» 
private  capacity,  as  a  private  citizen,  and  can  make  no 
ufe  of  any  public  ofEcial  character  he  may  fuftain,  ex- 
cepting merely  in  aggravation  of  damages.  The  courts 
where  fuch  aftions  are  to  be  litigated  are  the  fame  as 
thofe  where  any  adion  for  breach  of  contra<ft,  or  other» 
civil  injury  may  be  maintained. 

The  remedy,  or  redrefs  on  an  indidment  is  on  a  dif- 
ferent footing.  There,  unlefs  the  national  conftitution 
has  changed  it,  the  profecuf'on  is  to  be,  not  only  in  thtf 
ftate,  but  in  the  county  where  the  offence  is  committQd,' 


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'  The  indk'^iment  cannot  be  for  a  libel,  finiply,  agaJnft 
a  public  ollicer.  The  defcription  of  the  offence  may  bc 
aggravated  by  a  malicious  intention  in  the  party  charg-i 
ed,  to  deprive  the  party  libelled  of  ofTices,  or  nonors  : 
but  ftill  it  is  no  more  an  offence  againft  the  government 
in  kind,  than  it  would  be  if  the  pcrfon  libelled  had  nev- 
er poficfl'ed  an  office,  or  if  the  indiftment  was  for  an  af- 
fault  and  battery  on  the  fahie  perfon.  Thefe  injuries 
tan  ncvei-  be  confiderfed  as  offences  againft  the  general 
government,  even  though  the  libels  arc  againft  the  ofi 
fleers  of  the  fame  ;  but  muft  remain  within  the  jurifdic- 
tion  of  the  ftate  governments,  b'-caufe  the  party  ihjiired, 
altiiough  he  is  an  officer  of  the  t.ceral  government,  yet 
femaiiis  a  fubjeft  of^  and  under  die  proteftion  of  the 
ftate  whel^e  he  refides.  This  \cill  appear  to  be  conclu- 
five,  on  a  review  of  the  poWets  given  to  the  Congrefs  of 
the  United  States.  ■  '  •  '  ■  '"-"^    . ' " 

"  The  Congrefs  (hall  have  powet,  i  ft,  to  lay  and  col- 
"  left  taxes,  duties,  imports  and  excifes,  to  pay  debts^ 
•*  and  provide  for  the  cftmmon  defence  and  general 
**  welfare  of  the  United  States  :  but  all  duties,  impoft^ 
**  and  excifes  ftiall  be  uniform  throughout  the  United 
«  States." 

2.  "  To  borrow  fflone^  oft  the  ctedit  of  the  United 
««  States/' 

3.  "  To  tegtilate  commerce  with  foreign  nations,  and 
among  tiie  feveral  ftates." 

4.  *'  To  eftablifli  an  uniform  rule  of  naturalization, 
and  uniforrii  laws  on  the  fubjeft  of  bankruptcies, 
throughout  the  United  States." 

5.  "  To  coin  money  :  regulate  the  value  thereof;  and 
of  foreign  coin  j  and  for  the  ftandards  of  iveights  and 

**  meafures.'* 

6;  "  To  provide  for  the  punifhment  of  counterfeiting 
**  the  fecuritiesj  and  current  coin  of  the  United  States." 

7.  *'  To  eftablifli  poft  offices,  and  poft  roads." 

8.  "  To"  promote  the  progrefs  of  fcience  and  the  ufeful 
arts,  by  feeuring,  for  a  limited  time,  to  authors  and 
inventors,  the  exclufive  right  of  their  refpedtive  writ- 
ings and  difcoveries." 


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honors  : 
eminent 
had  nev- 
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injuries 
:  general 

the  ofi 
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ihjUred, 
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I  general 

imports 

United 

United 

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States." 

le  ufeful 
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ve  vvrit- 


,  9.  "  To'conllitute  tribunals  inferior  to  the  fuprenvj 

"  court."  :;.         ,     . 

,.  10.  ''.To  define  and  punifh  piracies  and  felonies  oil 
t'  the  high  feas,  and  ottences  agaiiifl  the  law  of  na* 
".tions."       ,   ,  ^  .    .,•:,,,  ,   .  ,.     ^,, 

^  1 1.  "  To  d?cl?ire  war  ;  grant  letters  of  marque  ahcj 
**  reprifal ;  and  m^ke  rules  concerrim  ;  captures  on  ths 
**  land  and  \vater.**  ... 

,  12.  *'  To  raife  and  fjipport  arnues.  But  no  appropri- 
^*,  ation  of  money  for  that  ufe  fhall  be  for  a  longer  teriil 
"  than  two  years."  , 

13*  **  To  provide.  3nd  maintain  a  navy.'* 
,    14.  "  I'o  make  fules.for  the  government,  aridregula- 
**  tions  for  the  land  and  nayaf  forces."  _ 

,  15,  "To  provide  for  calling  forth  the"  rnilitia,  to  exe- 
•*  cme  ^he  l^ws  ,6£  the  union,  fupprefs  infurreftlons,  and 
**  repel  invafions." 

.  ,:l6.  "  To  provide  fpr  organizing,  arming  and  difciplin- 
•*  ing  the  militia,  and. for  govejrning  fjjch  part  of  them 
**  as  may  be  employed  m  the  feryice  pf  the  Umted 
^'f/jStates, ;.  referving  to  the  ftates  refpedively,  the  ap- 
7;  go^tppent  of  officers,  and  the  authority  of  training  the 
*  .mifitia  ace  ^rding,  tg  the  difcfpllne  prefcrlbed  by  Con- 
"grels."        .      ,     ■_,,  .;„„    ......,,,.,.■■ 

47.  "  To  exercife  exclufive  legiflation  in  all  cafes'  what- 
***  foever  over  fuch  diflrift  (i^ot  exceeding-  ten'  mile^ 
**  fquare)  as  may,  by  ceffion  of  particular  ftates,  an<I 
*'  the  acceptance  of  Congfefs,:  become  t"he  feat  of  the 
^'  .government  of  the  United  States  j  and  to  exercife  like 
"  authority  over  4l  Peaces  purchafed  by  the  confent  of 

the  legiflature  of  the  ftate  in  which  the  fame  fhall  be, 
''  for  the  ere£lion  of  forts,  magazines,  arfenals,  dock  ' 
**  yards,  and  other  needful  buildings." 

1 8.  "  To  make  laws  which  fhall  be  necefTary  and  prop- 
*•  er  for  carrying  into  execution  the  aforegoing  power.s, 
"  and  all  other  powers  .vefled  by  this  conliitution  in  the 

government  of  the  United  States,  or  in  any  depart- 
**  ment  or  office  thereof." 

None  of  thefe  powers  feem  to  include  the  authority 
to  punifli  libels  j  and  therefore,  fome  very  good  jneny 

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!iave  their  doubts  whether  the  general  government  can 
make  laws  on  this  fubjeft. 

•  It  is  very  clear,  that  confideting  a  libel  as  a  private 
injur)',  the  congrefs  can  have  no  authority  to  enaft  a  law 
for  its  definition,  or  punifhment.  But  yet  it  does  by  no 
means  follow,  that  a  libel  may  not  be  fo  conceived,  and 
publilhed,  as  to  be  a  crime  againft  the  government  itfelf, 
independent  of  the  perfonalinjury  dcfne  to  the  particu- 
lar fubjeft  of  it  ;  and  when  that  is  the  cafe,  the  govern- 
ment ought  to  poffefs  the  powers  of  punifliing  it  on 
principles  of,preferving  the  conilitution# 

.Any  .laws  which  may  be  necelTary  to  the  carrying  in- 
fo effe£t  the  powers  vefled  in  the  national  government^ 
may  be  made  by  the  Congrefs  ;  but  if  there  is  no  gov- 
ernment, or  no  Congtefs,  there  can  be  no  laws  made. 
It  is  therefore  neceffarily  implied,  that  all  things  which 
ought  to  be  done  to  preferve,  and  maintain  that  govern- 
ment, which  is  vefted  with  thofe  authorities,  and  which 
may  make  laws  for  theit  execution,  may  make  laws  to 
preferve  its  own  exiftence.  Should  it  be  faid,  that  the 
Hate  governments  will  preferve  and  defend  the  exiftence 
of  the  federal  government,  this  would  by  no  means  be 
accepted  as  an  anf^er  ;  becaufe  a  government,  de- 
pending on  another .  government  for  its  exiftence,  is 
"merely  a  corporation-*— it  can  have  no  fovereignty— ^and 
can  be  no  band  of  union' for  a  nation. 

The  late  aft  of  Congrefs  was  deficient  in  its  princi- 
ples on  thefe  eS^tial  points.  It  went  beyond  what  the 
conftitution  would  warrant.  Some  of  the  libels  pointed 
out  by  the  aft,  were  fuch,  as  were  written  and  pubKfhed 
againft  the  prefident,  to  bring  him  perfonally  into  difre- 
pute,  or  contempt :  or  to  excite  againft  him  perfonally, 
the  hatred  of  the  people. 

The  conftitution  of  the  United  States  has  exprefsly 
provided,  that  crimes  fliall  be  tried  in  the  ftate  where 
fhey  (hail  be  committed.  And  that  in  dvfl  aftions> 
for  damages,  where  one  of  the  parties  is  a  citizen 
of  a  ftate,  of  which  the  other  is  not  a  citizen,  the  ac- 
tion may  be  commenced  and  profecuted  in  a  court  of  the 
Unked  States  at  the  eledion  of  the  parties.    There  is, 


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in  tHis  provifion,  no  diflin£tion  in  perfons  or  oflTicergp 
When  me  general  government  was  formed,  the  people 
might,  if  they  had  thought  it  proper,  have  made  provifion 
for  a  prefident,  vice  prefident,  and  all  the  gfficers  of  the 
general  government,  to  bring  their  fuits  and  profecution* 
in  the  federal  courts  ;  but  no  fuch  provifiou  ^yas  made. 
Perhaps  the  reafon  was,  that  thfc  general  government  is 
as  much  the  government  of  the  people,  as  the  others  ; 
and  muil  derive  its  fupport  from  the  fame  fource. 

The  character  of  the  firft  magiftrate  of  the  nation  U 
highly  to  be  refpecled  j  and  though  it  may  not  be  hfe 
in  any  keeping,  but  that  of  the  federal  government,  yet 
as  the  confthution  has  not  placed  it  there,  a  queftion,  on 
a  legal  principle,  does  not  arife  on  the  fubjetJ:.  Thofe 
who  are  advocates  for  the  late  ad  of  Congrefs  agahift  li- 
bels, may  fed  themfelves  hurt  at  thefe  obfervations  ;  and 
may  endeavor  to  fupport  their  meafure  by  arguments, 
fuppofed  to  refult  from  powers,  neceffarily  implied  in  the 
conftitution.  Their  arguments  will  be  before  the  public, 
and  I  am  without  anxiety  at  the  event,  be  it  what  it  may  j 
for  I  am  ready  to  receive  and  abide  the  public  judgmcnf 
It  has  been  faid,  that  the  power  of  felf  prefervation  is  an 
incidental,  conftituent  part  of  the  government ;  becaufe 
a  national  government  muft  be  a  fovereign  government 
of  courfe,  and  a  fovereignty,  relying  on  another  fdver- 
eignty,  for  civil  fupport,  is  an  inadmilfible  idea  in  politics ; 
buc  It  will  by  no  means  follow,  that  the  right  to  vindicate 
the  prefident's  perfonal  charafter  againft  libels,  h  necef- 
farily incident  to  the  couftifution.  The  want  of  perfonal 
charadler  in  a  chief  raagiftrate,  would  be  an  unfortunate 
circumftance  j  but  governments  have  exifled  very  fre^ 
quently  and  very  well,  under  this  diijlculty,  Should  the 
prefident  bring  a  civil  adion  for  a  libel,  or  other  flander, 
he  would  ftand  on  the  fame  level  with  other  afUons,  and 
have  his  trial  by  the  fame  rules  and  in  the  fame  courts 
Ayhere  they  have  their's.  Should  there  be  a  criminal 
profecution  for  a  libel,  publilhed  againfl  him  perfonally, 
it  tould  not  be  profecuted  any  where  but  in  the  (late 
courts,  and  in  the  county  where  the  offence  happens. 
But  if  the  iibel  k  pointed  at  him  perfonally,  and  yet  writ- 


C   52   } 


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jten,  prjnted,  or  publiflied,  with  an  intent  to  injaire,  tippo/e 
orfubvert  the  government  of  the  United  States  it  takes  a 
hew  denomination  of  criminality,'  and  becomes  ptinilha- 
ble  of  neceflity  in  thd  jucficiary  of  that  government  a- 
gainfl  which  the  crime  is  committed."  .''  >" 

The  argument,  thit  th6  Congr^fs  have  a  right  tb  pro- 
teft  the  character  of  the  prefident,  woul<l  with  the  fame 
propriety  be  extend,ed  to  every  officer  and  fcrvant  of  the 
general  government.'  '  There  can  be  no  government" 
without  officers,' 'and  there  can  be  no  government  kithr 
but  fubjefts  and  property.  '  The  cafe  with  us  is,  whether 
right  or  wrong,  mufl  reniain  under  the  procefs  of  exper- 
iment ;  that  we  havb,  frorti  a  number  of  feparate  fovcr- 
eign  ftates',  carved  out  a  national  general  •  fovereignty, 
limited,  as  to  its  authority,  over  the  fame  perfons  and 
the  fame  property,  as  the  (late  governments  haVe  in  pro- 
tedlion,  and  what  power  is  not  exprefsiy,  or  by  a  necef- 
fary  implication  given  to  that^  is  retained  to  the  feveral 
ftates.  Had  the  Congyeft'^naded,  that  if  any  perfon 
fhould  print,  write,  or  publifh,  iny  Hbel  agairift  the  prefi. 
denf ,  or  either  houfe '  of  Cohgrefs, '  ivith'  an  intint  to  ob- 
JSru^f  injure^  oppoje^  or'fub'verf^  the  government  of  the  U- 
nited  States,  or  to  raifcf edition  againji  the  famCy  he  fhould 
be  punilhed,  &c.  it  would  have  defcribcd  a  new  offence, 
which  ought  to  be  puriifhed  by  that  government.  But 
when  they  enaft,  that,  when  iiny  perfon  fhail  publifh  a  li- 
bel, with  an  intent  to' defame  the faid prefident,  or  to  excite 
againfi  him  the  hatred  of  the  good  people  ofthefeJiates,\\'\\h' 
rout  conneding  it  with  an  intent  to  injure  the  govern- 
ment, it  will  be  very  difficult  to  maintain  themealbre  by 
the  conftitution.     '  '  %^.v-,^  *v;    *  ^^  k 

It  may  be  faid,  that  the  injury  done  to  the  prefident 
rciay  be  an  injury  done  ^o  the  United  States.  That  may 
or  may  not  be  true  :  and  it  may  be  faid  that  libels  againfi 
the  judges  and  other  fervants  of  the  public,  are  injuries  to 
the  government.  Nay,  every  immoral  and  vicious  thing 
is  an  injury  to  the  nation  ;  but  the  creators  of  the  fe^- 
pral  government,  are  the  creators  and  the  fupporters  of 
the  others,  and  are  equally  intereflcd  in  all,  and  did  not 
choofe  to  invcft  the  general  government  with  all  the  au- 


f   53    ] 


ihority  claimed  in  the  late  fedition  law,  paffcd  by  the  lat0  - 

Congrels.  •,,•...•       -r  •. 

This  obfervation  will,  no  doubt,  ^e  made  and  be' 
cihoed  and  reechoed  from  one  champion  to  another,  ilmt 
ijf  the  federal  government  cannot  prijt -61  their  prefidentfroM  [ 
libels y  but  mt0Jind  him  to  thejiate  cmrtsfor  defence,  ive . 
had  better  give  up  the  national  fy -Hen  at  once.     This  ob-  ' 
fervation,  when  made,  will  be  the  refuit  of  the  want  of 
corifideration.  "  A  moment'?  reflexion  wilt  evince,  that ' 
the  gehieral  government  is  fupported  by  the  lUme  people, 
who  fiipport  the  others.    That  thefe  will  have  their  in- 
fluence ;  and  whenever  the  general  government  fhall  be 
gUided  by  men,  who  fhall  attempt  a  feparate  intereft,  tlie 
public  opinion  will  gradually  remove  them,  until  the 
connefting  balance  mall  be  reltoted  to  its  tonflitutionai 
perfeftion.     '    ' 

The  fufn  of  the  argument,  on  the  whole,  is  this,  that 
jthe'conrtitiitional  freedom  of  the  prefs  does  not  open 
tiie  flood  gates  of  flander  on  the  members  of  the  civil  fo- 
ciety,  and  allow  each  man  to  calumniate  his  neighbor 
with  impunity'. '  •  • 

'  That  a  man's  reputation  ought  to  be  guarded,  as  of 
the  next  confequence  to  his  life. 
'  That  whatever  is  in  fa£k  done  by  a  government,  or 
by  any  officer  of  it,  in  his  official  capacity,  or  unJer  a 
jJretence  of  official  authority,  may  be  publifhed  to  the 
^orld,without  the  writer  or  printer's  being  chargeable  for 
a  libel. 

That  the  reputation  of  men  in  office,  is  as  dear  to  them, 
as  that  of  other  citizens  are  to  them>  and  as  much  under 
the  proteftion  of  the  laws,  as  the  reputat'  .1  of  men  in 
private  life  is  ;  and  that,  therefore,  a  charge  againft  them 
6f  bribery  or  corruption,  ought  not  to  be  publiflied,  oth- 
erwife  than  in  a  judicial  profecution  againil  them,  before 
a  proper  tribunal,  where  they  may  be  removed  from  of-, 
f.ce,  or  otherwife  punlfhed  according  to  the  demerit  of 
their  crime.     •       ' 

That  where  a  man  appears  as  a  candidate  for  an  elec- 
tive ofiice,  he  exhibits  his  charadter  for  a  public  fcrutiny, 
and  every  one  has  a  nght  to  publiih  any  thing  againit  his 


,  -f '^ 


M 


II  <i.   i-- 


^ 


I     I' 


elefHon,  which  is  not  fklfe  in  hGt ;  but  mufl  be  anfwera* 
ble  for  all  falfehoods  and  groundlefs  flanders,  a&  well  \xk 
dvil,  as  in  a  criminal  profecution* 

That  though  every  one  has  a  right  to  publifh  the  pro* 
ceedings  of  the  government^  in  all  its  departments,  yet  if 
the  publications  are  made  of  meafures,  which  have  never ; 
happened,  the  writers  and  printers  are  aptenable,,  providr 
ed  that  any  injury  is  done,  or  may  be  done*  to  the  gov- 
ernment by  it.    Ine  fad  of  writing  or  pubUfhing  bdng .; 
proved,  die  burden  of  proof  refls  oil  the  d«^en^t,  to.^. 
prove  the  truth  of  the  fads  publiflied,  which  if  he  can* . 
not  do,  he  mufl  fubmit  to  pii^iihment ;  unlefs  he  caqr 
ihew,  that  it  was  innocently  done  from  mere  error  and  4 
mifts^e. 

That  though  no  one  can  juftify  the  ^dCe  publication  of  ^ 
fads,  in  regard  to  the  meafures  of  the  government,  yet  if 
iad&are  druly  puolifhed,  no  one  can  be  puniihed  for  reaf- 
oning  erroneoufly  upon  them,  or  for  publ}fliing:hi8  reaf?.. 
ons,  however  wrong..he  may  be  in  his  concluTions. 

That  the  general  government's  having  the  power  ot 
punifhing  libels  againll  the  government  itfelf,  by  a  nece£> 
iary  inference  from  the  confUtution,  does  by  no  mean9 
give  it  the  power  of  puniihing  thofe  which  are  pu))-. 
liflied  againft  its  prefident  or  oth^r  officers,  who  are  alfo 
the  fubjeds  of  the  (late  governments ;  unlefs  the  Ubel  i&r 
made  and  publifhed,  witn  an  intent  to  injure  the  govern-, 
ment  itfelf.    Which  intent,  mull  be  averred  in  the  in^ 
didment,  and  be  found  by  the  traverfe  jury,  or  jury  of 
trials,  otherwife  he  cannot  be  convided.     As  this  dif* 
tindion  moil  plainly  refults  from  the  Conftitution,  there 
can  be  no  doubt  but  that  every  candid,  fober  man  will 
be  ready  to  give  it  a  full  force  in  his  mind  ;  becaufe/ 
were  whatever  he  may  wi(h  the  conflitution,  he  }nu(( 
be  content  to  take  it  as  it  is. 

And  finally,  that  a  reafonable,  confUtutional  reflraint^ 
judicioufly  exercifed,  is  the  only  way,  in  which  the  free- 
dom of  the  prcfs  can  be  preferved,  as  an  invaluable  priv». 
ilege  to  the  nation.— //A7*.  "^ 


r ;,  t 


*tn  -  -^ 


nfwera» 
well  in 

^e  pro- 
s,  yfitif 
e  never , 
providr 

e  gOY- 


ant,  to^. 
ke  can-p' 
tie  caQ 
or  and 

itionof^ 
,  yet  if 
3rre?if- 
is  reaf? 

wer  of. 
necei^ 
means 
e  pujb- 
e  aifo 
libel  is 
overn- 
he  in? 
ury  of 
is  difr 
there, 
n  will 
:caufe,' 

muft 

traint^ 

;  free- 

priw 


-*i 


-i'-t. 


'■"te. 


